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Home My WebLink About5.1Item 5.1 TOWN OF LOS ALTOS HILLS July 19, 2012 Staff Report to the Planning Commission SUBJECT: A REQUEST FOR PERMIT MODIFICATION TO A SITE DEVELOPMENT AND VARIANCE PERMIT FOR THE REALIGNMENT OF BARRON CREEK APPROVED BY THE CITY COUNCIL ON MARCH 14, 2012; LANDS OF WADHWANI, RED ORCHID AND BLUE ORCHID, 26170, 26238 AND 26240 WEST FREMONT ROAD (FILE # 135-12, 146-12 AND 147 -12 -PM). FROM: Cynthia Richardson, Consulting Planner C(E— APPROVED: Debbie Pedro, AICP, Planning Directorc3)?. RECOMMENDATION That the Planning Commission: 1. Approve the addendum to the Mitigated Negative Declaration in Attachment #1; and 2. Approve the requested modifications to the previously approved Site Development permit for creek realignment, a fence exception, a setback variance for bridges and paths subject to the modified variance findings of approval in Attachment #2 and modified conditions of approval in Attachment #3. BACKGROUND On March 1, 2012 the Planning Commission recommended approval of the project (Attachment #4) and on March 14, 2012 the City Council approved the Barron Creek restoration and relocation project along with the associated variances and fence exceptions. A copy of the staff report and minutes are attached (Attachment #5 and #6). DISCUSSION The applicant proposes to move approximately 370 linear feet of the creek 16.5 feet back to the east from its previously approved location. Modification to the approved fence exception to locate a fence within 25 feet of the creek and modification to -a variance to allow three bridges and associated paving within the setbacks is required. No new impacts to trees and wetland vegetation will occur. The existing creek channel has historically been modified from its original location and has been constructed with man-made materials. The existing channel is lined with rip rap that is significantly overgrown with non-native vegetation. On March 14, 2012 the City Council approved the project, however once -the applicant began site planning studies on both Blue and Red Orchid properties it was discovered that their needs would be better suited to a wider building envelope. Therefore, the applicant Planning Commission Lands of Wadhwani, Red Orchid and Blue Orchid July 19, 2012 Page 2 of 4 is requesting to move the creels 16.5 feet back towards the east (towards its original/existing location) to gain a wider building envelope. The project remains the same in most every aspect. The Planning Commission will be the final acting authority on the modification because there are no increased environmental effects based on a letter from biological consultant Live Oak Associates dated July 5, 2012 (Attachment # 7)." The applicant has requested modifications to the approved Conditions of Approval including Conditions 3,7,14 and 25 (Attachment #8). Staff supports the applicant's changes that serve to clarify Conditions 3, 7 and 25. However, staff does not support the change to Condition number 14 and recommends the following revision'to the condition instead: Condition #14 - The proposed fence on the east side of the relocated channel shall be setback in a manner that accommodates the intended function and value of the channel revegetation plan. This includes a minimum setback of 15 feet from the ^enter of any planted riparian trees or- 15 ft. top of bank of the realigned channel, w► .,^ever is greater and from the center of any planted riparian tree, whichever is greater. Any new landscaping within 15 feet of the top of bank on the east side of the relocated channel shall be native riparian vegetation. Flood Control and Creek Realignment The modification to the realignment will consist of approximately 350 linear feet of the creek being moved approximately 16.5 feet to the east. Impacts to trees and wetland vegetation will remain the same and the existing mitigation measures are part of the conditions of approval. Forty-two willow trees will be removed which are located below the top of the creels bank (19 for the restoration and 23 for the relocation). Seventeen trees are to be removed that are located above the top of the creek bank. Mitigation measures require tree replacement on site at a 1:1 ratio for trees below the top of bank within the riparian habitat of Barron Creek and a 2:1 ratio for those above the top of bank. To meet this requirement, the applicant is proposing forty-two trees to be planted within the reconstructed storm drain easement and thirty-four additional trees to be planted outside the storm drain easement on the three properties (see sheet 3. and 23 in the project plan set). The modified project will move approximately 820 tons of rip rap from the existing man- made channel and an additional 165 cubic yards of soil will be imported for the project. The modified project grading specifications are similar to the previously approved project. The Engineering Department has reviewed the revised hydraulic report submitted by the applicant and verified that the new creek channel is designed to accommodate the 100 year flood event. Staff has also reviewed the project plans, found the project to be consistent with Town requirements and has recommended approval with conditions. Planning Commission Lands of Wadhwani, Red Orchid and Blue Orchid July 19, 2012 Page 3 of 4 Site Improvements (Fence, Paths, and Bridges) Fence . Pursuant to Section 10-2.702(e) of the Site Development Code (Attachment #9), structures shall be setback a minimum of 25' from the top of all creek banks. The code section allows the Planning Commission to approve lesser structural setbacks without requiring variance findings. The existing wrought iron fence on the Wadhwani property is approximately 5' to 10' away from the current top of bank. On March 1, 2012 the Planning Commission approved the existing wrought iron fence to be relocated 15 feet from the proposed top of bank. The applicant is requesting to maintain the approved fence exception to be 15' away from the modified top of bank. Variance for Paths and Bridges As with the previous approval, four creek crossings are proposed to span the new channel from top -of -bank to top -of -bank. One crossing is for a common driveway and is proposed to be 12 feet wide and three other bridges are proposed to be 8 feet wide to connect the Red and Blue Orchid properties to the Wadhwani property. The proposed 8' wide paths and bridges require a modification to the approved variance because the location of the pathways has shifted with the modification to the creek channel. However, the overall cumulative length of the pathways and bridges within the setback will remain the same on the Wadhwani and Red Orchid properties and there will be a net reduction of 60 square feet on the Blue Orchid. The applicant has provided modified variance findings and graphic illustrations in support of the variance (Attachment #10). Per Municipal Code Section 10-1.1007(2)(b), specific findings must be made in the positive for the project to be approved (Attachment #11). COMMITTEE REVIEW The modified plans and changes to the conditions of approval were reviewed by the Open Space Committee. The Open Space Committee has concerns with the changes to Condition 14. Specifically they want to ensure that no ornamental plantings are allowed within 15 feet of the top of bank on the east side of the creek. Staff has proposed above, a modification to the condition that reflects their concerns. CEOA STATUS Based on analysis by Live Oak Associates, an addendum to the approved Mitigated Negative Declaration was prepared. The addendum addresses the proposed project Planning Commission Lands of Wadhwani, Red Orchid and Blue Orchid July 19, 2012 Page 4 of 4 modifications as required under the CEQA Guidelines Section 15164 (b). The Planning Commission must approve the addendum along with the modified project. PUBLIC COMMENTS As of this date, no comments from.the public have been received. ATTACHMENTS. 1. Addendum to the Mitigated Negative Declaration 2. Variance Findings for approval prepared by applicant dated 6/20/12 3. Modified Conditions of approval - 4. Planning Commission minutes for meeting .dated 3/1/2012, approved 4/5/2012 5, City Council staff report dated 3/14/2012 6. City Council minutes (3/14/2012) 7. Live Oak Associates Addendum to the Biological Evaluation dated 7/5/2012 8. Applicants proposed modifications to Conditions of Approval 9. Municipal Code Section 10-2.702(e) 10. Applicants proposed modifications to the Variance Findings for Approval 11. Municipal Code Section 10-1.1007(2)(b) Variance Findings 12. Letter from McKenna Long & Aldridge dated 6/20/2012 13. Project plans dated 7/5/12 Attachment 1 TOWN OF LOS ALTOS HILLS ADDENDUM TO NEGATIVE DECLARATION PROJECT TITLE: Barron Creek Realignment Project PREPARED BY: Town of Los Altos Hills Cynthia Richardson, Planning Consultant 263 79 Fremont Road Los Altos Hills, CA 94022 (650)941-7222 NAME AND ADDRESS OF PROJECT SPONSOR: Dr. Romesh and Kathleen Wadhwani, 26170 W. Fremont Road Los Altos Hills, CA 94024 LOCATION OF PROJECT: Lands of Wadhwani, Red Orchid and Blue Orchid 26170, 2623 8, 26240 W. Fremont Road Los Altos Hills, CA 94022 APN#175-35-036, 175-35-014, 175-35-002 PROJECT DESCRIPTION: This addendum assesses the environmental impacts of the proposed modifications to the Barron Creek project. Specifically, the applicant proposes to move approximately 370 linear feet of the creek 16.5 feet back to the east from its previously approved location. Modification to the approved fence exception to locate a fence within 25 feet of the creek and modification to a variance to allow three bridges and associated paving within the setbacks is required. No new impacts to trees and wetland vegetation will occur. An addendum to the biological evaluation has been prepared by Live Oak Associates dated July 5, 2012. The addendum addresses modified impacts based on the revised project plans. The report concludes that there are no increased impacts to wetlands, trees, wildlife or water quality. This document is an updated version of an Initial Study and Mitigated Negative Declaration circulated between February 1, 2012 and March 1, 2012 for the Barron Creek Restoration and Relocation project. The previous project was approved on March 14, 2012. Since the original application, the proposed project has been modified in the following ways: Previous Project Modified Project Move creek 40 feet to the West Move creek 23.5 feet to the West Removal of 42 trees below the top of bank. Removal of 42 trees below the top of bank. Removal of 21 trees above the top of bank. Removal of 17 trees above the top of bank. Barron Creek Realigmnent Project July 19, 2012 Page 2 of 2 FINDING: Temporary disturbance to wetlands 0.12 acres Temporary.dist irbance to wetlands 0.11 acres Removal of 820 tons of rip rap Removal of 820 tons of rip rap Soil import 130 cubic yards Soil import 165 cubic yards Fence setback on east side of creek 15 feet Fence setback on east side of creek 15 feet Variance for paving within setback 780 square feet Variance for paving within setback 1 719 square feet The conclusion of th original Project wil substantially increase beyond those already addendum has been 15164. Debbie Pedro, AICP, Planning Director TOWN OF LOS ALTOS HILLS is addendum .is that the proposed changes to the 1 not result in new significant impacts nor the severity of previously disclosed impacts identified in the original Project. Therefore, an prepared pursuant to CEQA Guidelines Section Date Attachment A: Modified drawings dated July 5, 2012 . Attachment B: Original Mitigated Negative Declaration Attachment C: Approved Conditions of Approval Attachment D: Letter fi om Live Oak Associates dated July 5, 2012 Attachment 1 B TOWN OF LOS ALTOS HILLS NEGATIVE DECLARATION PROJECT TTTLE: Barron Creek Channel Flood Control and Realignment Project PREPARED BY: Town of Los Altos Hills Cynthia Richardson, Planning Consultant 26379 Fremont Road . Los Altos Hills, CA 94022 (650) 941-7222 NAME AND ADDRESS OF PROJECT SPONSOR Dr. Romesh and Kathleen Wadhwani, 26170 W. Fremont Road Los Altos Hills, CA 94024 LOCATION OF PROJECT: 26170, 26238, 26240 W. Fremont Road and 26169 Maurer Lane Los Altos Hills, CA 94022 APN#175-35-036, 175-35-014, 175-35-002,175-35-028 PROJECT DESCRIPTION: The proposed project consists of flood control measures to allow for continuous, unobstructed flow of water within .Bacon creek. The realignment, maintenance and revegetation of this 600 foot length of Barron Creek is located in the Town of Los Altos Hills. The existing creek channel has historically been modified from its original location and has been constructed with man-made materials. The existing channel is lined with rip rap that is significantly overgrown with non- native vegetation. This vegetation has also aided in the siltation of the creekbed causing ponding of water and resulting in inadequate channel size for the 100 year storm event. The City Engineer has determined that there is an immediate and increasing- risk that flooding and property damage will occur due to siltation, vegetation and tree growth within the creek. Additionally, willow trees are located directly in front of the outfall structure at the upstream portion of the creek. Flooding in this area could cause damage_ to adjacent properties which have been developed with single family homes. The realignment. will consist of approximately 350 linear feet of the creek being. moved approximately 40 feet to the west. Impacts to trees and wetland vegetation will occur and mitigation. will be imposed Proposed restoration and maintenance activities will include the removal of nineteen willow trees and the existing non-native, invasive vegetation within the upstream portion of the project site, which is not proposed for realignment. The removal of this vegetation will help to keep the channel clear of debris, maintain an unobstructed flow of water, and limit the exposure to flooding. Forty- two willow trees will be removed and will be replaced with new Barron Creek Channel Flood Control and Realignment Project January 26, 2012 Page 2 of 7 vegetation. An additional twenty one trees will be removed for the proposed driveway access and pathways. The project proposes to replant 84 trees on the three properties. The entire length of the creek will then be restored to a natural setting with native. materials to compensate for the flood control and 'realignment project. Four creek crossings are proposed to span the new channel from top -of -bank to top - of -bank. One crossing is for a common driveway and is proposed to be 12 feet wide and three others are proposed to be 8 feet wide and will need variances to allow walkways -and bridges wider than 4 feet to be located within the property line setback. Above ground utilities will be undergrounded and relocated to a new ingress/egress easement located along the driveways on the western side of the properties. The existing sewer line will not be relocated or altered The existing Wadhwani estate fence will be relocated westward towards the channel realignment as well. FINDING: The Town of Los Altos Hills has completed a review of the proposed project, and on the basis of the attached Initial.Study, has determined that the project, as mitigated, will reduce impacts to a less than significant level - MITIGATION bIEASURES INCLUDED IN THE PROJECT TO AVOID POTENTIALLY SIGNICIANT EFFECTS: Aesthetic Measure 1: A revegetation plan shall be prepared and implemented to compensate for the loss of approximately forty-two willow trees _and 21 other various trees required for removal due to the new driveway and pathways. For trees occurring within the riparian habitat of Barron Creek which are being removed, a minimum 1:1 replacement -to -removal ratio along the upper banks of the same reach of the creek where the willows are being removed is required. For the trees being removed outside of the riparian habitat a minimum of 2:1 replacement -to -removal ratio shall be used. For all trees located near the construction, tree protection measures shall be installed around the drip -line prior to construction and throughout the construction phase of the project. Biologic Resource Measure 1: Trees and other structures (i.e., birdhouses) planned for removal shall be removed during the non breeding season (September 1 through January 31). If it is not possible to avoid tree removal during the breeding season (February 1 through August 31), a qualified biologist shall conduct a pre - disturbance survey for tree -nesting raptors and migratory birds in all trees and other structures planned for removal and immediately adjacent to the disturbance zone no more than 30 days from the onset of the removal activities, if such disturbance will occur during the breeding season. If nesting raptors and migratory birds are detected on the site during the survey, a suitable activity -free buffer shall be established around all. active nests. The precise dimension of the buffer (up to 250 feet) would be determined at that time and may vary depending on location and species. Buffers shall remain in place for the duration. of the breeding season or until it has been confirmed by a qualified biologist that all chicks have fledged and are independent of their parents. Pre - disturbance surveys during the non -breeding season are not necessary for tree -nesting raptors and migratory birds, as they are expected to abandon their roosts during disturbance activities. Implementation of the above measure would mitigate impacts to tree -nesting raptors and migratory birds to a less -than -significant level. Barron Creek Channel Flood Control and Realignment Project January 26, 2012 Page 3 of 7 Biologic Resource Measure 2: A qualified -biologist shall conduci a pre -construction survey of the bat boxes for bats within 30 days prior to the onset of ground disturbance, if such disturbance will occur during the roosting season (March 1 through August 31). If active maternity roosts are detected during the survey, then a construction -free buffer shall be established around all active roosts. The buffer radius would be -established at the time work is to be carried out and would be determined by the extent and duration of construction activities scheduled to occur as well as the location of any roosts at that time. An onsite biological monitor would be necessary during construction when construction activities would be performed near these features during the roosting season. The monitor would have authority to issue a cease and desist order if construction activities disturb any bat roosts. If demolition of the bat boxes is to occur, then pre -demolition bat surveys shall be conducted to determine if special status bat species are present. If no bats are observed to be roosting in the boxes,- then no further action would be required, and dismantling of the boxes can proceed.. However, if bats are found to be roosting on the site, the project proponents shall exclude bats prior to dismantling to ensure no harm or take would occur to any special status bats as a result of demolition activities. Dismantling of the boxes shall occur after August 31 and before March 1 to avoid interfering with an active nursery. If a non -breeding bat colony is found in the boxes, the individuals shall be safely evicted under the direction of a qualified bat biologist through a "partial dismantle' process, whereby the roosting area is opened to allow air flow through and sunlight into the structure, malting it unsuitable habitat and undesirable for the bats to return to the site. Full dismantling shall then follow no later than the following day (i.e., there shall be no less than one night between initial disturbance for airflow and the demolition). This action shall allow bats to leave during the night, thus increasing their chances of finding new roosts with a minimum of potential predation during daylight hours. Biologic Resource Measure 3: Due to the nature of the proposed project activities, full avoidance of jurisdictional waters and sensitive habitats on the site is not possible. Therefore, the project proponent shall implement .minimization and compensation measures to reduce impacts to jurisdictional waters and sensitive habitats to a less -than -significant level. minimization. Because full avoidance is not possible, actions shall be taken to minimize impacts to aquatic and riparian habitats. Measures taken during construction activities shall include placing construction fencing around the aquatic features or riparian areas to be .preserved to ensure that construction activities do not inadvertently impact these areas. Any proposed future lighting on the property (e.g., footpath lighting) shall be designed to minimize light and glare impacts to the riparian corridor. To the maximum extent practicable, light sources shall not be visible from riparian areas and shall not illuminate riparian areas or cause glare on the opposite side of the channel (e.g., to neighboring properties). Additionally, with the exception of the willows to be removed at the upstream end of the channel, proposed realignment activities shall be designed and situated to avoid the loss of trees within and adjacent to the channel to the maximum extent practicable. The Town's creek protection ordinance requires all structures to be set back a minimum of 25 ft, from the top of bank of all creeks. The existing Wadhwani estate fence is located within approximately 10 ft. of the top of bank along the east side of the channel. The proposed revegetation for the channel realignment will provide increased riparian habitat function and value over the channel's existing condition. Therefore, rather than conforming strictly with the Town's creek protection ordinance, the new estate fence shall be .set back in a manner that accommodates the intended function and value of the channel revegetation plan. This includes a minimum Barron Creek Channel Flood Control and Realignment Project January 26, 2012 Page 4 of 7 setback of 15 ft. from the center of any planted riparian trees or 15 ft. from the .top of bank of the realigned channel, whichever is greater. Compensation. An onsite revegetation plan has been developed to compensate fortemporary impacts to 0.12 acres of wetlands occurring within the channel and the loss of the. approximately forty-two willows and other riparian trees. A formal tree survey shall be completed to determine the actual number of trees to be removed. It is expected that all compensation measures can be accommodated within the proposed channel alignment, as the channel is proposed to be planted with native wetland vegetation. If the new channel alignment cannot fully accommodate the compensation measures, then offsite restoration would be necessary. Compensation measures shall include: Creation of at least 0.12 acres of wetlands within the channel. Replacement of,all willows removed from anywhere below the top of bank along the existing channel alignment at a minimum 1:1 replacement -to -removal ratio. Replacement of the nineteen willows removed from the upstream end of the channel shall occur along the upper banks of this same reach of the creek. The willows occurring in the creek were originally planted as pole cuttings. and occurred as natural recruits. Because they have become a nuisance by obstructing the flow of water through the charmel, the Town has indicated its desire to have these trees removed. Therefore, the recommended replacement -to - removal ratio for willow impacts as described above was developed with the Town and through informal conversations with the USACE and CDFG (Paula Gill, pers. comm, February 2011; Dave Johnston, pers. comm, February 2011). This mitigation is consistent with the requirements of these regulatory agencies. To the maximum extent practicable, removed trees shall be replaced with like species. Due to the flow obstructions created by the existing willows and the project's objective to prevent future obstructions, other riparian tree species (e.g., coast live oaks and California sycamores) may be substituted in consultation with a qualified biologist. Replacement of all other native riparian trees (i.e., riparian trees occurring beyond the top of bank) at a minimum 2:1 replacement -to -removal ratio as agreed upon with USACE and CDFG. To the maximum_ extent practicable, removed trees shall be replaced with like species. Reseeding or replanting of riparian or wetland vegetation (i.e., a combination of trees, shrubs, and herbaceous vegetation) along the channel benches and banks. These measures shall be implemented according to a site-specific revegetation plan that would be prepared for agency review. This mitigation plan would need to be approved by the responsible agency prior to the start of project activities. The revegetation plan shall: 1. Designate suitable replanting areas. 2. Describe the methods by which the revegetation will occur, including species to be planted and plant installation guidelines. 3. Develop a timetable for implementation of the plan. 4. Outline a monitoring methodology and establish appropriate performance criteria. 5. Describe remedial measures to be performed in the event that initial revegetation measures are unsuccessful in meeting the performance criteria. 6. Describe site maintenance activities_ to follow revegetation activities. These may include weed control, irrigation, and control of herbivory. - Compliance with Regulatory Agency Requirements. The applicant shall also comply with all state and federal regulations related to work that will impact jurisdictional waters occurring on the site, which includes Barron Barron Creels Channel Flood Control and Realignment Project January 26, 2012 Page 5 of 7 Creek and may also include the wetland patch abutting the creek, should it be regulated by the agencies. This may require obtaining a Section 404- Clean Water Act permit from the USACE, Section 401 Water Quality Certification from the RWQCB, and Section 1600 Stream Alteration Agreement from the CDFG prior to initiating any realignment and maintenance activities, if deemed. necessary. Permit conditions typically require a mitigation plan outlining compensatory measures for impacts to all jurisdictional features. As such, while impacts to the abutting wetland would not be considered significant and, therefore, would not require mitigation under CEQA, a small amount of additional mitigation may be required by the agencies for. impacts to the abutting wetland in order to comply with their permit conditions. It is expected that the agencies would seek mitigation in the form of onsite wetland creation or enhancement. The project proposes to plant the channel of the new alignment with wetland vegetation. This would accommodate both temporary impacts to wetlands occurring within the existing channel and permanent impacts to the wetland patch abutting the creek. Biologic Resource Measure 4: For mitigation measures related to the removal of trees -within the riparian habitat of Barron Creek, refer. to Biologic Resource Measure 3. The following measures are recommended for trees occurring outside of the riparian habitat. Tree removal shall. occur pursuant to relevant Town ordinances, including securing a tree removal permit and complying with the permit conditions. All trees, to be removed shall be replaced onsite at a minimum 2:1 replacement -to -removal ratio (two trees planted for each tree removed). A monitoring plan for the replacement trees shall be developed and submitted to the Town during the permit process. The basic components of the monitoring plan shall consist of final success criteria, specific performance criteria, monitoring methods, data analysis, monitoring schedule, contingency/remedial measures, and reporting requireriments. For trees to be retained, impacts to any retained trees during the construction and operation phases of the project can be reduced to a less -than -significant level by conforming to the following guidelines. These measures shall remain in place for the duration of construction activities at the project site: • The project proponent shall retain a consulting arborist prior to any ground disturbance activities. The consulting arborist would develop a tree protection plan outlining specific procedures to ensure that retained trees are protected during the construction phase. • Prior to any ground disturbance activities, fencing shall be installed around the drip -line of all retained trees occurring within the development envelope, and the fencing shall remain in place throughout the construction, phase of the project. The type of fencing to be utilized would be at the direction of the consulting arborist. • Any limb or root pruning to be conducted on retained trees shall be approved and supervised by the consulting arborist and shall follow best management practices developed by the International Society of Arboriculture. • Supplemental irrigation to retained trees shall be applied as determined by the consulting arborist. • If any of the retained trees are damaged during the construction phase, they shall be evaluated at the earliest possible time by the consulting arborist so that appropriate measures can be identified and implemented by the applicant. Cultural Resource Measure 1: Upon discovering or unearthing any possible burial site as evidenced by human skeletal remains or artifacts, the person making such discovery shall immediately notify the County of Santa Clara Coroner and no fiuther disturbance of the site may be made except as authorized by the County Coordinator of Indian Affairs. Barron Creek Channel Flood Control and Realignment Project January 26, 2012 Page 6 of 7 Hydrology and Water. Quality Measurel: The new creek channel and bridges shall be designed and construct4ed to meet the 100 year flood event. Land Use and Planning Measure 1: The Planning Commission shall review and approve the proposed new common driveway which crosses from the existing driveway on the Wadhwani property (26170 W. Fremont Road) onto the Red Orchid Property (26238 W. Fremont Road). An easement shall be recorded on the Red Orchid property allowing the ingress -egress and stipulating that no other driveway access will be granted on this property. Land Use and Planning Measure 2: A variance must be obtained from the Planning Commission to allow walkways and bridges greater than 4 feet wide to be located within the property lime setbacks on the Wadhwani property (26170 W. Fremont Road), Red Orchid property (26238 W. Fremont Road) and Blue Orchid property (26240 W. Fremont Road). If the variance is not granted then the walkways and bridges must be reduced to no greater than 4 feet wide. Noise Measure 1: Noise generating construction activities shall be limited to Monday through Saturday between the hours of 8:00 am and 5:30 pm. No heavy noise generating equipment is allowed to be used on Saturdays and no construction is allowed on Sundays or holidays as noted per Chapter 7, Sec.5-7-01 of the Los Altos Hills Municipal Code. Debbie Pedro, AICD, Planning Director TOWN OF LOS ALTOS HILLS Circulated on• �t /� Z Adopted on: x/26 t I -L Date Attachment 1C RECOMMENDED CONDITIONS FOR SITE DEVELOPMENT PERMIT FOR THE BARRON CREEK CHANNEL FLOOD CONTROL AND REALIGNMENT PROJECT LANDS OF WADHWANI, RED ORCHID, BLUE ORCHID AND PEFLEY (APN'S 175-35-036,175-35-014,175-35-002,175-35-028) FILE #163-11, 234 -11,239 -11 -SD -IS -ND -VAR PLANNING 1. No other modifications to the approved plans are allowed except as otherwise fust reviewed and approved by the Planning Director or the Planning Commission, depending on the scope of the changes. 2. These Site Development permits shall be valid for two years from the final approval date. All required permits must be obtained within that- two year period and work must be commenced. 3. The Heritage Oak tree shown on sheet 3 of 25 to be removed for the construction of a new driveway on the Red Orchid property shall not be removed. The driveway shall be redesigned to preserve this tree to the satisfaction of the Planning and Engineering Department. 4. The applicant shall defend, indemnify, and hold harmless the Town of Los Altos Hills and its agents, officers, and employees from any claim, action, or proceeding against the Town of Los Altos Hills or its agents, officers, or employees to attack, set aside, void, or annul an approval of the project to the extent such actions are brought within the time period required by Government Code Section 66499.37 or other applicable law; provided, however, that the Applicant's duty to so defend, indemnify, and hold harmless shall be subject to the Town's promptly notifying the Applicant of any said claim, action, or proceeding and the Town's full cooperation in the defense of such actions or proceedings. 5. Prior to beginning any grading or construction operations, all significant trees shall be fenced with chain link type material at the dripline. Town staff must. inspect the fencing and trees to be fenced prior to starting grading or construction. The fence must remain in place throughout the course of construction. No storage of equipment, vehicles or debris shall be allowed within the drip lines. All large and heritage oak trees shall be retained to the greatest extent feasible. 6. No access shall be allowed from 26238 Fremont Road along the western property line. A non access strip deed restriction shall be recorded against the property. The form of the deed restriction shall be subject to approval as to form by the City Attorney and City Engineer prior to final inspection. Lands of Wadhwani, Red Orchid, Blue Orchid and Pefley Conditions of Approval Page 2 of 4 7. Applicant shall prepare and record an irrevocable deed restriction on the three properties requiring that the additional width of the bridges and paths shall be removed by the applicant or its successor and the area returned to landscaping as specified in the approved landscape plan if the property that contains such bridge or path is conveyed to any person other than the applicant, applicant's family, and entities (including trusts, charitable trusts, or foundations) owned or controlled by applicant and applicant's family. The deed shall be approved as to form by the City Attorney and City Engineer and the deed shall be recorded prior to the Certificate of Completion for this project. Upon discovering or unearthing any possible burial site as evidenced by human skeletal remains or artifacts, the person malting such discovery shall immediately notify the County of Santa Clara Coroner and no further disturbance of the site may be made except as authorized by the County Coordinator of Indian Affairs. This shall be accomplished to the satisfaction of the County Coroner's Office and the Planning Director, as may be necessary during the construction of the project. 9. The applicant shall relocate or abandon existing public utility easements and grant new public utility easements where needed to all utility companies for utility construction and maintenance, including but not limited to: AT&T Telephone Company, Pacific Gas and Electric Company, Comcast Cable Television, and California Water Service Company. The dedications shall all be completed in conjunction with the Site Development Permit, to the satisfaction of the City Engineer. 10. Trees and other structures (i.e., birdhouses) planned for removal shall be removed during the non -breeding season (September 1 through January 31). If it is not possible to avoid tree removal during the breeding season (February 1 through August 31), a qualified biologist shall conduct a pre -disturbance survey for tree - nesting raptors and migratory birds as described in Biologic Resource Measure 1. 11. A qualified biologist shall conduct a pre -construction survey of the -bat boxes for bats within 30 days prior to construction, if construction is to take place between March 1 through August 31. If active maternity roosts are detected during the survey, then a construction -free buffer shall be established around all active roosts as further described in Biologic Recourse Measure 2. 12. Prior to construction the applicant shall place construction fencing around the aquatic features or riparian areas to be preserved to ensure that construction activities do not inadvertently impact these areas. 13. Any proposed firture lighting on the property (e.g., footpath lighting) shall be Lands of Wadhwani, Red Orchid, Blue Orchid and Pefley Conditions of Approval Page 3 of 4 designed to minimize light and glare, impacts to the riparian corridor. To the maximum extent practicable, light sources shall not be visible from riparian areas and shall not illuminate riparian areas or cause glare on the opposite side of the channel (e.g., to neighboring properties). 14. The proposed fence shall be set back in a manner that accommodates the intended function and value of the channel revegetation plan. This includes a minimum setback of 15 ft. from the center of any planted riparian trees or 15 ft. from the top of bank of the realigned channel, whichever is greater. 15. Replacement of all willows removed from anywhere below the top of bank along the existing channel alignment shall be replaced at a minimum 1:1 ratio. Replacement of all other native riparian trees (i.e., riparian trees occurring beyond the top of bank) shall be replaced at a minimum 2:1 replacement -to -removal ratio and shall be replaced with like species. All trees shall be replaced prior to final inspection. 16. Reseeding or replanting of riparian or wetland vegetation (i.e., a combination of trees, slu-ubs, and herbaceous vegetation) along the channel benches and banks shall be implemented prior to final inspection. ENGINEERING 17. The Engineer of Record shall observe the construction of the Barron Creek Channel Improvements and state that all improvements have been installed and constructed per the approved plans. A stamped and signed letter shall be prepared and submitted to the Town prior to final inspection. 18. Any, and all, changes to the approved improvement plans shall be submitted as revisions from the project engineer and shall first be approved by the Town Engineering Department. No grading shall take place during the grading moratorium (October 15 to April 15). 19. All public utility services for 26238 & 26240 Fremont Road shall be placed underground prior to final inspection. A copy of recorded easements shall be provided to Town prior to start work 20. A recorded copy of an irrevocable private driveway easement over 26238 Fremont Road for the benefit of 26170 West Fremont Road shall be provided to Town prior to issuance of the grading permit. The easement language shall be provided to Town for review and approval as to form by the City Attorney and the City Engineer prior to recording. Lands of Wadhwani, Red Orchid, Blue Orchid and Pefley Conditions of Approval Page 4 of 4 21. The property owner shall provide a copy of required permits from outside agencies prior to start work. 22. The property owner shall provide an approved conditional Letter of Map Revision from FEMA prior to start work. 23. Two copies .of a grading and construction operation plan shall be submitted by the property owner for review and approval by the City Engineer and Planning Director prior to start work The grading/construction operation plan shall address truck traffic issues regarding dust, noise, and vehicular and pedestrian traffic safety on Fremont Road and common driveway, storage of construction materials, placement of sanitary facilities, parking for construction vehicles, clean-up area, and parking for construction_ personnel. A debris box (trash dumpster) shall be placed on site for collection of construction debris. Arrangements must be made with the Green Waste Recovery, Inc. for the debris box, since they have a franchise with the Town and no other hauler is allowed within the Town limits. 24. The property owner shall inform the Town of any damage and shall repair any damage caused by the construction of the project to pathways, private driveways, and public and private roadways, prior to final inspection and shall provide the Town with photographs of the existing conditions of the roadways, private driveway, and pathways prior to start work. 25. The property owner shall dedicate a minimum 27' wide storm drain easement to the Town. The property owner shall provide legal description and plat exhibits that are prepared by a registered civil engineer or a licensed land surveyor and the Town shall prepare the dedication document. The dedication document, including the approved exhibits, shall be signed and notarized by the property owner and returned to the Town prior to start work 26. The storm drain maintenance agreement shall be signed and notarized by the property owner and returned to the Town prior to start work. 27. An encroachment permit shall be required by the Public Works Department for the proposed sanitary sewer laterals for 26238 & 26240 Fremont Road and channel work prior to start work. Attachment 1D July 5, 2012 LIVE OAK ASSOCIATES, INC. Cynthia Richardson Town of Los Altos Hills Planning Department 26379 Fremont Road Los Altos Hills, CA 94022 an Ecological Consulting Firm Subject: Addendum to the biological evaluation prepared for the Barron Creek realignment in Los Altos Hills, California (PN 1584-01) Dear Cynthia: At your request, Live Oak Associates, Inc. (LOA), has prepared this addendum to the biological evaluation (LOA 2012a) dated January 3, 2012, and prepared for the proposed Barron Creek channel realignment in Los Altos Hills, California. This addendum addresses revised impacts resulting from a change to the proposed realignment described in the January 2012 biological evaluation report. The project originally proposed to realign the channel 40 ft. west of the existing channel and remove an unspecified number of non -riparian trees. The project now proposes to realign the channel 23.5 ft. west of the existing channel alignment, remove 17 non - riparian trees, and relocate one tree (I{imley-Horn and Associates 2012). The original proposal to construct four crossings over the realigned channel and to remove 42 trees below the top of bank will remain unchanged. Impact Analysis Disturbance to Waters of the United States or Riparian Habitats The original proposed channel realignment would have temporarily impacted approximately 0.12 acres of the existing Barron Creek channel (LOA 2012a). Realignment of the channel 23.5 ft. west of the existing channel would result in temporary impacts to approximately 0. 11 acres of wetland channel within Barron Creek. Impacts to riparian trees as described in section 3.3.5 of the biological evaluation report (LOA 2012a) remain the same. Mitigation measures to compensate for impacts to the channel will remain as described in section 3.3.5 of the biological evaluation report (LOA 2012a) but will compensate for impacts to 0.11 acres. All measures to minimize impacts to riparian habitat, including the setback of the estate fence on the east side of the channel, will also remain unchanged. Section 3.3.5 of the referenced report is included in Appendix A. San Jose: 6840 Via del Oro, Suite 220 - San Jose, CA 95119 - Phone: (408) 224-8300 - Fax: (408) 224-1411 Oakhurst P.O. Box 2697.39930 Sierra Way, Suite B - Oakhurst, CA 93644. Phone: (559) 642-4880 - Fax: (559) 6424883 Bakersfield: 8200 Stockdale Highway, M10-293 - Bakersfield, CA 93311 Section 3.3.5 of the biological evaluation report (LOA 2012a) also discussed an approximately 400 sq. ft. patch of hydrophytic vegetation as being a potential wetland and potential water of the U.S. on the basis that it abuts the channel. Subsequent analysis of the feature by LOA led to a revised conclusion that this patch does not constitute a wetland and, therefore, should not be a water of the U.S (LOA 2012b). However, the U.S. Army Corps of Engineers is the final arbiter and may take jurisdiction over this feature despite our analysis. If so, then the regulatory issues as described in section 3.3.5 of the biological evaluation report would apply. Impacts related to the construction of the four channel crossings as described in section 3.3.5 of the biological evaluation report (LOA 2012a) are unchanged. Removal of Non -Riparian Trees The project as described in the biological evaluation report (LOA 2012a) described an unspecified number of non -riparian trees to be removed. That number has now been determined to be 17 non -riparian trees occurring above the top of bank. Additionally, one coast redwood will be relocated to another non -riparian location onsite. The mitigation measures for the removal of non -riparian trees as described in.section 3.3.6 of the biological evaluation report (LOA 2012a) would adequately offset tree removal impacts. The mitigation measures for trees to be retained as described in section 3.3.6 of the report (LOA 2012a) should be followed for the relocated redwood. Section 3.3.6 of the referenced report is included in Appendix A. Other Impacts to all other biological resources (i.e., habitat for special status plants and animals, active raptor and migratory bud nests, bat nursery sites, habitat for native wildlife, movement of native wildlife, and degradation of water quality) would remain unchanged. If you have any questions regarding our conclusions, please contact me at dohlsona,loainc.com or (408) 281-5886 at your earliest convenience. Sincerely, Davinna Ohlson, M.S. Senior Project Manager Plant/Wildlife Ecologist References Kimley-Horn and Associates, Inc. 2012. Barron Creek channel improvements, permit set. San Jose; CA. Live Oak Associates, Inc. Live Oak Associates, Inc. 2012a. Barron Creek Wadhwani channel realignment biological evaluation, Town of Los Altos Hills, California. San Jose, CA. _. 2012b. Investigation of potential waters of the United States, Barron Creek Wadhwani, Town of Los Altos Hills, California. San Jose, CA. Live Oak Associates, Inc. APPENDIX A RELEVANT IMPACTS AND MITIGATION MEASURES FROM "BARRON CREEK WADHWANI CHANNEL REALIGNMENT BIOLOGICAL EVALUATION, TOWN OF LOS ALTOS HILLS, CALIFORNIA" (JANUARY 2012) 3.3.5 Disturbance to Waters of the United States or Riparian Habitats Potential Impacts. Barron Creek is a water of the U.S. and -California subject to.regulation by the USACE, RWQCB, and CDFG. If the USACE determines that the wetland patch abutting Barron Creek is under their jurisdiction, then this feature will be regulated by the USACE and is also likely to be regulated by the RWQCB. . Realignment of the straightened portion of the channel and maintenance activities at the upstream end of the channel will result in temporary impacts to approximately 600 linear ft. and 0.12 acres of wetland channel within Barron Creek and will also result in the removal of riparian trees, including: • Approximately 19 willows in the bed and along the lower banks of the upstream end of the channel; and • Approximately 23 willows occurring below the top of bank at the downstream end of the channel. The placement of fill within wetlands occurring in the existing channel to accommodate the realignment would be considered a significant impact. Removal of the willows fiom all portions of the channel as well as removal of any other associated riparian trees at the downstream end of the channel would also be considered a significant impact. Additionally, channel realignment would permanently impact approximately 400 sq. ft. of the abutting wetland. For the purposes of CEQA, impacts to the abutting wetland patch would be considered minimal due to the small size of the area being affected and, therefore, would be considered a less -than -significant impact. Four crossings are proposed to clearspan the new channel alignment. Because they are one of the design elements for the new alignment, they would not be considered an impact to waters of the U.S. Mitigation. Due to the nature of the proposed project activities, full avoidance of jurisdictional waters and sensitive habitats on the site is not possible. Therefore, the project proponent should implement minimization and compensation measures to reduce impacts to jurisdictional waters and sensitive habitats to a less -than -significant level. Minimization. Because full avoidance is not possible, actions should be taken to minimize impacts to aquatic and riparian habitats. Measures taken during construction activities should include placing construction fencing around the aquatic features or riparian areas to be preserved to ensure that construction activities do not inadvertently impact these areas. Live Oak Associates; Inc. Any proposed future lighting on the property (e.g., footpath lighting) should be designed to minimize light and glare impacts to the riparian corridor. To the maximum extent practicable, light sources should not be visible from riparian areas and should not illuminate riparian areas or cause glare on the opposite side of the channel (e.g., to neighboring properties). Additionally, with the exception of the willows to be removed at the upstream end of the channel, proposed realignment activities should be designed and situated to avoid the loss of trees within and adjacent to the channel to the maximum extent practicable. The Town's creek protection ordinance requires all stiuctures to be set back a minimum of 25 ft. from the top of bank of all creeks. The existing Wadhwani estate fence is located within approximately 10 ft. of the top of bank along the east side of the channel. The proposed revegetation for the channel realignment will provide increased riparian habitat function and value over the channel's existing condition. Therefore, rather than conforming strictly to the Town's creek protection ordinance, the new estate fence should be set back in a manner that accommodates the intended function and value of the channel revegetation plan. -This includes a minimum setback of 15 ft. from the center of any planted riparian trees (i.e., 15 ft. from the tree trunk) or 15 ft. from the top of bank of the realigned channel, whichever provides the greater setback distance. Compensation. An onsite revegetation plan should be developed to compensate for temporary . impacts to 0.12 acres of wetlands occurring within the channel and the loss of the willows and other riparian trees. A formal tree survey should be completed to determine the actual number of trees to be removed. It is expected that all compensation measures can be accommodated within the proposed channel alignment, as the channel is proposed to be planted with native wetland vegetation (section 1.1). If the new channel alignment cannot fully accommodate the compensation measures, then offsite restoration would be necessary. Compensation measures should include: • Creation of 0.12 acres of wetlands within the channel. • Replacement of all willows removed from anywhere below the top of bank along the existing channel alignment at a minimum 1:1 replacement -to -removal. ratio. Replacement of the nineteen willows removed from the upstream end, of the channel should occur along the upper banks of this same reach of the creek. Replacement of the willows removed from the downstream end of the channel can be planted along the realigned portion of the creek. All of the willows occurring in the creek were originally planted as pole cuttings.and occurred as natural recruits. Because they have become a nuisance by obstructing the flow of water through the channel, the Town has indicated its desire to have these trees removed. Therefore, the recommended replacement -to -removal ratio for willow impacts as described above was developed with the Town and through informal conversations with the USAGE and CDFG (Paula Gill, pers. comm., February 2011; Dave Johnston, pers. comm., February 2011). This mitigation is conceptually consistent with the requirements of these regulatory agencies. To the maximum extent practicable, removed trees should be replaced with like species. Due to the flow obstructions created by the existing willows and the project's objective to prevent future obstructions, other riparian tree species (e.g., coast live oaks and California sycamores) may be substituted in consultation with a qualified biologist. Live OakAssociates, Inc. • Replacement of all other native riparian trees (i.e., riparian trees occurring beyond the top of bank, should removal be required) at a minimum 2:1 replacement -to -removal ratio. To the maximum extent practicable, removed trees -should be replaced with like species. • Reseeding or replanting of riparian or wetland vegetation (i.e., a combination of trees, shrubs, and herbaceous vegetation) along the channel benches and banks. These measures should be implemented according to a site-specific revegetation plan. This mitigation plan would need to be approved by the responsible agency prior to the start of project activities. The revegetation plan should: 1. Designate suitable replanting areas. 2. Describe the methods by which the revegetation will occur, including species to be planted and plant installation guidelines. 3. Develop a timetable for implementation of the plan. 4. Outline a monitoring methodology and establish appropriate performance criteria. 5. Describe remedial measures to be performed in the event that initial revegetation measures are unsuccessful in meeting the performance criteria. 6. Describe site maintenance activities to follow revegetation activities. These may include weed control,, irrigation, and control of herbivory. This measure will reduce impacts to waters of the U.S. and sensitive habitats to a less -than - significant level. R_,gulatory issates. The applicant should also comply with all state and federal regulations related to work that will impact"jurisdictional waters occurring on the site, which includes Barron Creek and may also include the wetland patch abutting the creek, should it be regulated by the agencies. This may require obtaining a Section 404 Clean Water Act permit from the USACE, Section 401 Water Quality Certification from the RWQCB, and Section 1600 Stream Alteration Agreement from the CDFG prior to initiating any realignment and maintenance activities, if deemed necessary. Permit conditions typically require a mitigation plan outlining compensatory measures for impacts to all jurisdictional features. As such, while impacts to the abutting wetland would not be considered significant and, therefore, would not require mitigation under CEQA, a small amount of additional mitigation may be required by the agencies for impacts to the abutting wetland in order to comply with their permit conditions. It is expected that the agencies would seek mitigation in the form of onsite wetland creation or enhancement. The project proposes to plant the channel of the new alignment with wetland vegetation. This would accommodate both temporary impacts to wetlands occurring within the existing channel and permanent impacts to the wetland patch abutting the creek. Live Oak Associates, Inc. 3.3.6. Tree Removal Impacts Potential Impacts. Channel realignment and maintenance activities will include the removal of approximately nineteen willows currently along the bed and lower banks of the upstream portion of the channel, approximately 23 willows at the downstream end of the channel, and one young coast redwood in upland habitat beyond the top of bank at the downstream end of the channel (section 3.3.5). The actual number of trees to be removed will depend on the final project plans. The removal of trees would constitute a significant impact. Construction activities that lead to the injury, decline, structural failure, or death of a tree proposed to be retained on the site would also constitute a significant impact. Mitigation. For mitigation measures related to the removal of trees within the riparian habitat of Barron Creek, refer to section 3.3.5. The following measures are recommended for trees occurring outside of the riparian habitat. A formal tree survey should be completed to determine the actual number of trees to be removed from the site. Tree removal should occur pursuant to relevant Town ordinances, including securing a tree removal permit and complying with the permit conditions. All trees to be removed should be replaced onsite at a minimum 2:1 replacement -to -removal ratio (two trees planted for each tree removed) or as specified by the Town, whichever is greater. A monitoring plan for the replacement trees should be developed and submitted to the Town during the permit process. The basic components of the monitoring plan should consist of -final success criteria, specific performance criteria, monitoring methods, data analysis, monitoring schedule, contingency/remedial measures, and reporting requirements. For trees to be retained, impacts to any retained trees during the construction and operation phases of the project can be reduced to a less -than -significant level by conforming to the following guidelines. These measures should remain in place for the duration of construction activities at the project site: • The project proponent should retain a consulting arborist prior to any. ground disturbance activities. The consulting arborist would develop a tree -protection plan outlining specific procedures to ensure that retained trees are protected during the construction phase. • Prior to any ground disturbance activities, fencing should be installed around the drip -line of all retained trees occurring within the development envelope, and the fencing should remain in place throughout the construction phase of the project. The type of.fencing to be utilized would be at the direction of the consulting arborist. • Any limb or root pruning to be conducted on retained trees should be approved and supervised by the consulting arborist and should follow best management practices developed by the International .Society of Arboriculture. • Supplemental irrigation to retained trees should be applied as determined by the consulting arborist. • If any of the retained trees should be damaged during the construction phase, they should be evaluated at the earliest possible time by the consulting arborist so that appropriate measures can be taken. Live Oak Associates, Inc. Implementation of the above mitigation measures would reduce tree impacts to a less-than- significant level. Live Oak Associates, Inc. Attachment 2 PROPOSED UPDATED FINDINGS FOR APPROVAL OF A VARIANCE FOR PATH AND BRIDGE ENCROACHMENTS WITHIN THE PROPERTY LINE SETBACKS LANDS OF WADHWANI, RED ORCHID AND BLUE ORCHID 26170, 26238, 26240 W. FREMONT ROAD Background In connection with the inter -related Site Development Permits for re -aligning Barron Creek on portions ofParcel 175-35-002 ("Red Orchid'), 175-35-014 ("Blue Orchid") and 175-35-036 ("Main Parcel"), the Applicant is proposing to construct four bridges over the proposed realigned channel of Barron Creek. Starting from thenorth, closest to Fremont Road, the Driveway Bridge is part of a common driveway with the adjacent Red Orchid property. Although this first bridge and associated driveway are within the property line setbacks of the Main Parcel and Red Orchid, they are permitted by Town Code as part of a common driveway. The remaining three proposed bridges are garden crossings intended to provide access from the Main Parcel to the central portions of the Red Orchid and Blue Orchid properties. Each bridge is proposed to be eight feet wide and would be connected to the Main Parcel property line by pathways of the same 8 foot width; pathways of the same width on the Main Parcel would then connect to the existing perimeter walkway on the Main Parcel. On March 14, 2012, .the City Council approved a variance for the construction of three garden crossing bridges and associated pathways, to connect the Main Parcel with the central areas of the "Orchid" parcels. Applicant is now proposing to readjust the reconstructed drainage channel to be approximately 16.5 feet closer to the Main Parcel property line. Because the channel is moving 16.5 feet, the garden crossing bridges and pathways on the Orchid parcels are being reconfigured slightly. Therefore, the description of the bridges and pathways within the setback is being modified slightly. No significant changes are required for the variance findings. Garden Crossing #1 is located within the mandated property line setback from the Main Parcel property line. (It is approximately 4 feet at its closest point to the common property line between the Red Orchid and Main Parcel.) The eight foot wide pathway from the east end of the bridge to the existing pathway on the Main Parcel is also within the 30 foot property line setback area. At the west end of the bridge, 2 feet of pathway is within the setback area. Garden Crossing #2 is located within the property line setback area from the Main Parcel property line. The pathway connecting to the Main Parcel is also within the 30 foot setback area of both the Blue Orchid and Main Parcel properties. In addition to the bridge itself, 4 feet of pathway on the east end and 2 feet on the west end is within the setback area. Garden Crossing #3 is located within the setback area of the Blue Orchid property where it adjoins the Main Parcel. The path from the eastern end of the bridge to the perimeter walkway on the Main 301339317.2 1 Parcel is located in the setback areas of both the Blue Orchid and Main Parcels. In addition, 2 feet of pathway at the west end of the bridge is within the setback area. The Code permits "walkways" within the property line setback areas. Walkways are defined as being four feet wide. Thus, the presence of bridges or walkways up to four feet wide within the setback areas is allowed by the Code. However, a variance is necessary for any bridge or pathway located in the property line setback area with a width greater than four feet. In summary, Applicant is seeking variances with respect to the following: - Garden Crossing #1 - 24.5 foot length of Garden Crossing #I bridge, four feet width beyond authorized four feet -Pathway from eastern end of Garden Crossing bridge to Main Parcel property line (approximately 4 feet in length) for four feet of width beyond authorized four feet, and 2 feet of pathway at western end of bridge - 30 foot pathway from property line to existing Main Parcel perimeter path, for width beyond four feet - Garden Crossing #2 - 24.5 foot length of Garden Crossing # 2 bridge, to extent exceeds four foot width - 4 foot Pathway from east end of bridge to Main Parcel property line, and 2 feet of pathway at western end of bridge to extent exceeds allowed 4 foot width - 30 foot Pathway from Blue Orchid property line to existing Main Parcel perimeter path, to extent exceeds allowed four foot width - Garden Crossing #3 - 24.5 foot Garden Crossing #3 bridge, four width beyond allowed four feet - 4 feet of pathway from bridge to Main Parcel property line, and 2 feet of pathway at western end of bridge, four foot width beyond allowed four foot width - 27 foot pathway on Main Parcel from property line to existing perimeter path, four foot of width in excess of generally allowed four foot "walkway" width. The purpose of the variance(s) is to allow the bridges and connecting walkways (to extent they are located in property line setback zones) to be built to a width of eight feet as opposed to the maximum width of four feet otherwise allowed under Planning staff s interpretation of the Town's Municipal Code. The requested additional width is necessary to (1) allow the bridges and connecting paths to be utilized by landscaping (e.g., mowers, etc.) and other small'maintenance vehicles to move freely 301339317.2 2 between the two "Orchid" properties and the Main Parcel, (2) provide more convenient pedestrian access between the Main Parcel and the Red and Blue Orchid properties. The following findings support approval of a variance for the additional width of the bridges and pathways - 1 . athways.1. Because of exceptional and extraordinary circumstances applicable to the subjectproperty, including size, shape, topography, location or surroundings, the strict application ofthe proVisions of this Title is found to deprive such property ofprivileges enjoyed by other properties in the vicinity and under identical zoning classification; The three properties which are the subject of this variance request are currently in common ownership. The Main Parcel was developed approximately eleven years ago with a large home on the center of the lot and a pool and gardens at the south end. In 2011, the two parcels to the immediate west of the Main Parcel (Red Orchid and Blue Orchid) were purchased by entities controlled by the owner of the Main Parcel. Thus, all three parcels are in common beneficial ownership. The "Orchid" properties were each occupied by undistinguished homes built in the early 1950's, which have been demolished. The Owner -currently intends to develop each of the Orchid parcels with a house to be used by persons visiting the Owner. No plans have been prepared or submitted for the use or development of the "Orchid" properties; the current Site Development and Variance Applications do not propose any development beyond the west end of the three proposed garden crossing pathways. Currently, the area near the western boundary of Main Parcel is occupied by a man-made channel for Barron Creek and its associated channel easement. This channel effectively limits any pedestrian or vehicular access from the Orchid parcels to the Main Parcel. The Site Development Permit application proposes to realign the existing Barron Creek channel approximately 24 feet to the west of its current position, onto the easternportion of the Orchid parcels. The realignment is intended to improve the flow characteristics -of the channel and reduce the existing flood extents, due to the channel's current configuration. Also, for various reasons the existing channel is severely degraded, and the new channel will provide substantially greater biological value. Although the stream channel is proposed to be relocated, the relocation will not change the fact that the stream channel will remain as a barrier to access between the Main Parcel and the developable areas of the Orchid properties. The presence of a stream channel dividing the Main Parcel from the developable areas of the adjacent Orchid parcels is an exceptional and extraordinary circumstance not generally applicable to other properties in the vicinity. Only a small percentage of the properties in the Town are affected by an open stream channel which prevents access between adjacent properties or portions of the same parcel. Immediately upstream and downstream from the Properties, Barron Creek flows in culverts and does not present a barrier to movement between and within parcels. The vast majority of the properties in the Town are not affected by an open stream channel that prevents access by small landscaping or maintenance vehicles between different portions of a parcel or between adjacent parcels. For most parcels; small landscaping or maintenance vehicles may access the full area of a parcel or pass freely from one adjacent parcel to another (subject obviously 3013393172 1 to authorization from parcels in question.) The presence of an open stream corridor separating the Orchid parcels into mutually inaccessible portions and preventing access between the Main Parcel and developable areas of the otherwise adjacent Orchid parcels is an exceptional circumstance which does not affect the vast majority of parcels in the vicinity of these. Properties. Strict compliance with the four foot width limitation for walkways and bridges would eliminate the ability to build a bridge across the stream corridor that would be wide enough to allow passage for typically -sized landscaping vehicles or small construction/maintenance vehicles. Although the Project will provide a driveway bridge over the channel near Fremonf Road, this driveway bridge would provide awkward and inconvenient access for landscaping and maintenance vehicles needing to pass from one parcel to another. Multiple bridges, are necessary because the Main Parcel is divided into various areas and gates and other constraints make it difficult to move- larger landscaping and maintenance equipment from one area of the Main Parcel to others. While in the abstract a single 8 foot garden crossing bridge could provide maintenance and landscaping vehicle access across the drainage channel, providing multiple bridges accessible to landscaping/maintenance vehicles minimizes the need for such vehicles to make long traverses near the banks on the east side of the relocated creek channel. To protect such drainage channels, the Town generally requires a 25 foot setback from the top of the creek bank. This typical 25 foot wide stream protection area extends beyond the Main Parcel property line. A limitation to one garden crossing bridge would increase the need and frequency of landscaping and maintenance vehicles to travel through this setback area to reach other sections more distant from the bridge, increasing the potential for landscape and habitat disruption, soil disturbance and erosion/siltation in this sensitive area near the. channel. Providing three bridges as proposed minimizes the need for landscape and maintenance vehicles to pass back and forth in this sensitive area along the creek. 2. Upon the granting of the variance, the intent and purpose of the applicable sections of the. Zoning Ordinance will still be served and the recipient of the variance will not be granted special privileges not enjoyed by other surrounding property owners. The apparent purpose of the properly line setback is to prevent or minimize structures near the boundary of, one property from having a negative impact on' an adjacent property. Under the circumstances of these proposed variances, the variances are compatible with this purpose. The properties for which the variances are requested are under common ownership. Thus, the somewhat wider pathways and bridges within the setback areas will not have any visual or other impact on the adjacent owners. Because the Main Parcel and Orchid properties are not being merged, it is possible that at some point in the future the Main Parcel and the Orchid properties will return to separate ownership. However, any person considering the purchase of any of the parcels after the proposed Garden Crossing bridges and pathways are built will be aware of the bridges and pathways in the setback areas. If the bridges/walkways four feet wider than typically allowed by Code are objectionable, a potential new owner can (1) chose to not purchase the property in question; (2) remove/modify pathways or bridges in the setback areas or bargain for their removal in connection with the purchase of such property (subject to the then -applicable rules of the Town and any other agency with regulatory authority over the drainage channel). Thus, with the proposed variances no property owner will be involuntarily. subjected to construction in the setback area which is objectionable. 301339317.2 4 In addition, the rules of the Town and agencies regulating the new channel will require that the channel area be heavily vegetated, further minimizing any visual impact ofthe bridges and pathways on one property to any adjacent owner. Granting of the variance will not grant any special privilege to the Applicant. As noted above, the vast majority of the surrounding property owners do not have open stream channels or drainage ditches cutting through their properties and thus landscaping and maintenance vehicles are free to access any area of their properties, or to cross from one adjacent property to another, without the necessity of using any bridge. Thus, providing the three 8 foot wide garden crossings only provides the Applicant some approximation of the ability most land owners have to freely move such equipment around their properties. Being able to move such equipment within property and among adjacent properties is in no sense a "special privilege." Barron Creek does traverse several properties immediately upstream and downstream of the subject properties. However, in those properties the creek runs in underground culverts. Both pedestrians and small equipment are free to cross the path of the creek alignment on those properties without the need for any bridge or the construction of a bridge or path limited to a 4 foot width. Again, the variance would grant no "special privilege" as comparedto those adjacent properties in which Barron Creek runs in culvert and therefore does not raise access issues. Finally, the applicant has offered to place an irrevocable deed restriction on the properties that would require that when any one ofthe properties are sold with the result of separate ownership of the Main Parcel and Orchid Parcels, the additional width of the bridges and paths will be removed by the applicant or its successor on the affected properties, and returned to landscaped areas. 3. The granting of such variance will not be materially detrimental to the public welfare or injurious to the property, improvements or uses within the immediate vicinity and within the same zoning district. The bridge and pathways which are subject to these variance(s) are located so as to be essentially invisible from the adjacent public roadways. The bridges will be located so as to span the channels and be of height as to not impair the hydrologic capacity of the stream channel. The additional width (eight feet vs four feet) of the bridge and walkway will not have any significant environmental impacts. The proj ect engineer, landscape engineer and the environmental biologist all conclude that the bridges will not have a significant effect on'the environment notwithstanding the shading that will occur under the bridges. The additional riparian area that will be shaded by the bridges will be compensated for in the overall revegetation plan. The overall improvement of the biologic habitat within the creek channel and the selection of appropriate plantings for the areas under the bridge will result in a less than significant biologic impact. Because of their location near the interior property lines ofthe Main Parcel and the Orchid parcels, the somewhat wider bridges and walkways will not impact or be readily visible from any other nearby properties under different ownership. No adjacent parcel not under common ownership would have a close or direct view to the two northern- most garden crossings. While it is possible that the southern -most garden bridge (Crossing #3) could be visible from the property to the immediate south, neither this bridge or nor its connecting paths would be in or near the setback area with that adjacent residence, and under the Code it would be possible to build other structures in the Blue Orchid property that would be much closer and more visible to the property to the south than 301339317.2 5 the small bridge and pathway proposed under the variance. In any event, the visual impact of an 8 foot wide bridge vs the Code authorized four foot wide bridge would be insignificant. 4. The variance will not authorize a use or activity which is not otherwise expressly authorized by the Zoning District regulations governing the parcel of property. Paths and bridges are authorized uses within setbacks in the R -A zoning district. The increased width will allow small maintenance vehicles to move freely between the properties and will provide more convenient pedestrian access between the Wadhwani property and the Red and Blue Orchid properties. The variances requested do not involve any change to the "use" of any of the three properties in question. The bridges and pathways are consistent with and accessory to the continued planned residential use of all three parcels. The Code would permit the construction of three garden crossing bridges, and the walkways connecting those bridges to existing pathways on the Main Parcel. The additional four feet ofwidth for each ofthose bridgestwalkways does not change the "use" but merely makes it more convenient to move landscaping and small construction vehicles within and between the Orchid parcels and the Main Parcel. 301339317.2 6 Attachment 3 RECOMMENDED MODIFIED CONDITIONS FOR, SITE DEVELOPMENT PERMIT FOR THE BARRON CREEK CHANNEL FLOOD CONTROL AND REALIGNMENT PROJECT LANDS OF WADHWANI, RED ORCHID, BLUE ORCHID AND PEFLEY (APN'S 175-35-036,175-35-014,175-35-002,175-35-028) FILE #163-11,234-11,239-1 l -SD -IS -ND -VAR PLANNING 1. No other modifications to the approved plans are allowed except as otherwise first reviewed and approved by the Planning Director or the Planning Commission, depending on the scope of the changes. 2. These Site Development permits shall be valid for two years from the final approval date. All required permits must be obtained within that two year period and work must be commenced. The Heritage Oak tree near the new driveway on the Red Orchid property shall not be removed. The driveway shall preserve this tree to the satisfaction of the Planning and Engineering Department. 4. The applicant shall defend, indemnify, and hold harmless the Town of Los Altos Hills and its agents, officers, and employees from any claim, action, or proceeding against the Town of Los Altos Hills or its agents, officers, or employees to attack, set aside, void, or annul an approval of the project to the extent such actions are brought within the time period required by Government Code Section 66499.37 or other applicable law; provided, however, that the Applicant's duty to so defend, indemnify, and hold harmless shall be subject to the Town's promptly notifying the Applicant of any said claim, action, or proceeding and the Town's full cooperation in the defense of such actions or proceedings. 5. Prior to beginning any grading or construction operations, all significant trees shall be fenced with chain link type"material at the dripline. Town staff must inspect the fencing and trees to be fenced prior to starting grading or construction. The fence must remain in place throughout the course of construction. No storage of equipment, vehicles or debris shall be allowed within the drip lines. All large and heritage oak trees shall be retained to the greatest extent feasible. 6. No access shall be allowed from 2623 8 Fremont Road along the western property line. A non access strip deed restriction shall be recorded against the property. The form of the deed restriction shall be subject to approval as to form by the City Attorney and City Engineer prior to final inspection. Lands of Wadhwani, Red Orchid, Blue Orchid Modified Conditions of Approval Page 2 of 5 7. Applicant shall prepare and record an irrevocable deed restriction" on the three properties requiring that the additional width of the bridges and paths shall be removed by the applicant or its successor and the area returned to landscaping as specified in the approved landscape plan if the property that contains such bridge or path is conveyed to any person other than the applicant, applicant's family, and entities (including trusts, charitable trusts, or foundations) owned or controlled by applicant and applicant's family. However this, requirement for bringing any bridges and pathways within property line setback areas in compliance with Code shall not apply if all three parcels are sold or transferred together to a person or entity, or if all three parcels are transferred to a new owner, member of a new owner's family, or entities (including trusts, charitable trusts, or foundations) owned or controlled by new owner and/or new owner's family. If due to a sale or transfer, one or more of the parcels comes into separate ownership, then any bridge(s) or path(s) that are within the property line setback of any parcel(s) that are in separate ownership from any of the other parcels shall be brought into compliance, but no action is required with respect to bridges or pathways within the setbacks of properties that remain in common ownership. The deed shall be approved as to form by the City Attorney and City Engineer and the deed shall be recorded prior to the Certificate of Completion for this project. 8. Upon discovering or unearthing any possible burial site as evidenced by human skeletal remains or artifacts, the person making such discovery shall immediately notify the County of Santa Clara Coroner and no further disturbance of the site may be made except as authorized by the County Coordinator of Indian Affairs. This shall be accomplished to the satisfaction of the County Coroner's Office and the Planning Director, as may be necessary during the construction of the project. 9. The applicant shall relocate or abandon existing public utility easements and grant new public utility easements where needed to all utility companies for utility construction and maintenance, including but not limited to: AT&T Telephone Company, Pacific Gas and Electric Company, Comcast Cable Television, and California Water Service Company. The dedications shall all be completed in conjunction with the Site Development Permit, to the satisfaction of the City Engineer. 10. Trees and other structures (i.e., birdhouses) planned for removal shall be removed during the non -breeding season (September 1 through January 31). If it is not possible to avoid tree removal during the breeding season (February 1 through August 31), a qualified biologist shall conduct a pre -disturbance survey for tree - nesting raptors and migratory birds as described in Biologic Resource Measure 1. 11. A qualified biologist shall conduct a pre-constiuction survey of the bat boxes for Lands of Wadhwani, Red Orchid, Blue Orchid Modred Conditions of Approval Page 3 of 5 bats within 30 days prior to construction, if construction is to take place between March 1 through August 31. If active maternity roosts are detected during the survey, then a construction -free buffer shall be established around all active roosts as further described in Biologic Recourse Measure 2. 12. Prior to construction the applicant shall place construction fencing around the aquatic features or riparian areas to be preserved to ensure that construction activities do not inadvertently impact these areas. 13. Any proposed future lighting on the property (e.g., footpath lighting) shall be designed to minimize light and glare impacts to the riparian corridor. To the maximum extent practicable, light sources shall not be visible from riparian areas and shall not illuminate riparian areas or cause glare on the opposite side of the channel (e.g., to neighboring properties). 14. The proposed fence on the east side of the relocated channel shall be setback in a manner that accommodates the intended function and value of the channel revegetation plan. This includes a minimum setback of 15 feet from the top of bank of the realigned channel and from the center of any planted riparian tree, whichever is greater. Any new landscaping within 15 feet of the top of bank on the east side of the relocated channel shall be native riparian vegetation. 15. Replacement of all willows removed fiom anywhere below the top of bank along the existing channel alignment shall be replaced at a minimum 1:1 ratio. Replacement of all other native riparian trees (i.e., riparian trees occurring beyond the top of bank) shall be replaced at a minimum 2:1 replacement -to -removal ratio and shall be replaced with like species. All trees shall be replaced prior to final inspection. 16. Reseeding or replanting of riparian or wetland vegetation (i.e., a combination of trees, shrubs, and herbaceous vegetation) along the channel benches and banks shall be implemented prior to final inspection. 17. The Engineer of Record shall, observe the construction of the Barron Creek Channel Improvements and state that all improvements have been installed and constructed per the approved plans. A stamped and signed letter shall be prepared and submitted to the Town prior to final inspection. 18. Any, and all, changes to the approved improvement plans shall be submitted as revisions from the project engineer and shall first be approved by the Town Lands of Wadhwani, Red Orchid, Blue Orchid Modified Conditions of Approval Page 4 of 5 Engineering Department. No grading shall take place during the grading moratorium (October 15 to April 15). 19. All public utility services for 26238 & 26240 Fremont Road shall be placed underground prior to final inspection. A copy of recorded easements shall be provided to Town prior to start work. 20. A recorded copy of an irrevocable private driveway easement over 26238 Fremont Road for the benefit of 26170 West Fremont Road shall be provided to Town prior to issuance of the grading permit. The easement language shall be provided to Town for review and approval as to form by the City Attorney and the City Engineer prior to recording. 21. The property owner shall provide a copy of required permits from outside agencies prior to start work. 22. The property owner shall provide an approved conditional Letter of Map Revision from FEMA prior to start work. 23. Two copies of a grading and construction operation plan shall be submitted by the property owner for review and approval by the City Engineer and Planning Director prior to start work The grading/construction operation plan shall address truck traffic issues regarding dust, noise, and vehicular and pedestrian traffic safety on Fremont Road and common driveway, storage of construction materials, placement of sanitary facilities, parking for construction vehicles, clean-up area, and parking for construction personnel. A debris box (trash dumpster) shall be placed on site for collection of construction debris. Arrangements must be made with the Green Waste Recovery, Inc. for the debris box, since they have a franchise with the Town and no other hauler is allowed within the Town limits. 24. The property owner shall inform the Town of any damage and shall repair any damage caused by the construction of the project to pathways, private driveways, and public and private roadways, prior to final inspection and shall provide the Town with photographs of the existing conditions of the roadways, private driveway, and pathways prior to start work. 25. The property owner shall dedicate a minimum 27' wide storm drain easement to the Town. The property owner shall provide legal description and plat exhibits that are prepared by a registered civil engineer or a licensed land surveyor and the Town shall prepare the dedication document. The dedication document, including the approved exhibits, shall be signed and notarized by the property owner and returned to the Town prior to start work. Concurrently with the recordation of the property owner's dedication of the storm drainage easement for the revised Lands of Wadhwani, Red Orchid, Blue Orchid Modified Conditions of Approval Page 5 of 5 channel alignment, the Town shall record a document abandoning its easement over any portion of the existing storm drain easement that is not within the 27' wide easement for the realigned channel. 26. The storm drain maintenance agreement shall be signed and notarized by the property owner and returned to the Town prior to start work. 27. An encroachment permit shall be required by the Public Works Department for the proposed sanitary sewer laterals for 26238 & 26240 Fremont Road and channel worlc prior to start work. Attachment 4 Planning Commission Minutes Approved April 5, 2012 March 1, 2012 Page 5 4) The exception was brought about by the requirements placed on the home which required the Ellis' to move their house thirty feet to the north. Seconded by Commissioner Clow. AYES: Commissioners: Partridge, Abraham, Clow, Harpootlian, and Chairman Collins NOES: None ABSENT: None ABSTAIN: None MOTION MADE, SECONDED, AND PASSED BY ROLL CALL VOTE: Commissioner Clow moved to return the tennis court to its original configuration, from one month ago. Second by Commissioner Abraham. AYES: Commissioners: Abraham, Clow, and Chairman Collins NOES: Commissioners: Harpootlian and Partridge ABSENT: None ABSTAIN: None 3.2 LANDS OF WADHWANI, RED ORCHID, BLUE ORCHID, AND PEFLEY (APPLICANT: ROMESH WADHWANI), 26170, 26238, and 26240 West Fremont Road, 26169 Maurer Lane; File # 163-11, 239-11, 234-11 SD -GD -IS -ND -VAR, 235 -11 -EP. A request for a site development application for the Barron Creek Channel Flood Control and Realignment Project including a new driveway access for 26238 Fremont Road and setback variance for paths and bridge crossings; CEQA Review: Mitigated Negative Declaration (Staff -Cynthia Richardson). Cynthia Richardson, Planning Consultant, presented the staff report f6r the project. The site consists of three parcels: Lands of Wadhwani,'Lands of Red Orchid, and Lands of Blue Orchid. The creek channel exists along a storm drain easement that runs along the west and south property lines of the Wadhwani property. The existing channel is lined with rip rap and is significantly overgrown with non-native vegetation. The purpose of the project is to clean out the trees, weedy vegetation, remove the silt buildup in the channel, and to relocate the creels forty feet to the west. This will allow more open space for the Wadhwani home. The creek is culverted both upstream and downstream of the project. The applicant is proposing to relocate a portion of the creek approximately forty feet to the west, and restore the entire length of the channel to a natural setting. Approximately six hundred and sixty tons of rip rap will be removed from the channel and one hundred and thirty cubic yards of material will be imported to the site. A hydraulic study was prepared indicating that the one hundred year storm waters will be contained within the new channel. The biological report requires mitigation for tree removal. Approximately forty-two willow trees located below the top of the bank and twenty-one trees on top of the bank will be removed. Forty-two trees are to be planted within the reconstructed storm drain easement and forty-two additional trees are to be planted outside the storm drain easement. A twenty-five foot creek bank structure setback is shown in the plans and the applicant is requesting that the Commission consider allowing the existing wrought iron fence to be relocated fifteen feet away from the proposed realigned channel. The applicant is requesting a variance to Planning Commission Minutes Approved April 5, 2012 March 1, 2012 Page 6 locate multiple eight foot paths within the property line setback, where four feet is allowed. Staff requests that the Planning Commission forward a recommendation to the City Council to adopt the mitigated negative declaration and the mitigation monitoring plan; approve the three requested site development permits; and decide on a variance application. Commissioner Clow asked staff to elaborate on the proposed eight foot crossings. Debbie Pedro, Planning Director, explained that the crossings do not meet the Town's driveway definition because the paths do not serve as a route for use by vehicles leading from a parking area, house, or garage to a public or private road right-of-way. Director Pedro stated that an official driveway would need to be twelve feet wide, as defined in the Municipal Code. The proposed paths do not comply with these requirements. Commissioner Partridge asked staff to elaborate on the requested fifteen foot setback, where twenty-five feet is required. Consultant Richardson, explained that the twenty-five foot setback is a structural setback which pertains to structures including fences. Commissioner Harpootlian asked staff if there would be a setback requirements for the creek if it was undergrounded. Richard Chiu, City Engineering and Public Works Director, explained that if the channel was put into a pipe, there would be a storm drain easement requirement. The easement would need to be clear of any structures, and the easement size would be dependant on the size of the pipe and the amount it would be carrying. Director Pedro added that staff would probably recommend against undergrounding the creek. CHAIRMAN COLLINS OPENED THE PUBLIC HEARING Tom Klope, Project Landscape Architect, stated that the design of the project sedks to do several things: 1) Improve the capacity of the channel for flood control. 2) Eliminate standing water that occurs year around due to urban runoff, which will also eliminate mosquitoes. 3) Reduce the sedimentation of the channel. 4) Improve biological diversity of the corridor. 5) Improve the aesthetics. 6) Improve vehicular and pedestrian circulation between the three parcels. 7) Preserve adequate building envelopes and development areas, and the potential for future structures. The primary goal for the proposal is to improve over six hundred feet of the Barron Creek Channel that is in rapid decline, and is significantly deteriorating with the potential flooding risk and liability. Mr. Klope explained that the applicant is requesting a variance for the bridges because the allowed four feet is not enough space to accomplish what is needed. Eight foot wide paths would be required for maintenance and light trucks to access the greater estate. The applicant is also requesting that a fifteen foot wide easement setback be considered on the west side of the Planning Commission Minutes Approved April 5, 2012 March 1, 2012 Page 7 proposed channel, The setback variance is requested to identify what type of development may occur in the future. Commissioner Harpootlian stated that the creek appears to be an engineered creek and the twenty-five foot setback is primarily a requirement for protecting natural creeks, not engineered creeks. Eric Biland, Project Engineer, stated that the issue with the restoration is to develop a man-made channel within the riparian corridor to transport water from the upstream culvert to the downstream culvert. This would reduce the potential for flooding. Commissioner Clow asked the applicant's representatives to identify the type of wildlife that could be found in the riparian habitat. Mr. Biland explained that the initial study indicates that the creek has become isolated due to the culverts. The property is also fenced off on all but the Fremont Road side of the property. He stated that the initial study does not identify any significant concern for wildlife. Commissioner Harpootlian stated that his understanding for the twenty-five foot setbacks is to make viable, ecological environments around the creek. He stated that it is important to examine how the area will be fenced and wildlife access. Mr. BiIand stated that there has not been any consideration for site development on the Orchid properties. On the Wadhwani side the idea is to maintain a fifteen foot setback from the top of the bank to the existing fence along Fremont Road. Commissioner Partridge asked the applicant's .representatives about the proposal to have a fifteen foot setback on the Orchid properties, when there is no development being proposed. He asked if it made legal sense to vote when it may bind future decisions. Steve Mattas, City Attorney, stated that the request is not part of the application and was not included in the environmental review document. He explained that a more appropriate time to discuss the setback is when the site development permit is submitted with the Red and Blue Orchid properties. He recommended to the Planning Commission that they not consider the request for the fifteen foot setback on the Orchid properties. Dr. Wadhwani, applicant, explained that he does not consider the current channel a creek. He stated that the channel has lost its shape, is filled with rip rap, is overgrown with weeds, and does not contain wildlife. He explained that if he did not request to move the creels and the Town went ahead and tried to clean the rip rap and stabilize the banks of the channel, it would be roughly a one million dollar project. What is currently being proposed is roughly a two million dollar project. He explained that he is receiving no net gain with the project. His intention when asking for the setback variance on the Orchid properties is to identify potential development opportunities. He explained that he is looking for some level. of assurance_- that there is a reasonable amount of flexibility to develop something with aesthetic value. Planning Commission Minutes Approved April 5, 2012 March 1, 2012 Page 8 Commissioner CIow stated that if the property was merged there would not- be an issue of setbacks. However, if the project is approved and the eight foot wide bridges are built and the Orchid properties are sold, there will be a problem with the bridges. Dr. Wadhwani suggested there be a condition assigned to the project addressing this situation. Tai Shyu, neighbor on Catherine Court, lives downstream of the property and has concerns that the flow of surface water may be impacted by the project. Pat Ley, neighbor on Ortega Drive, asked what the purpose was for having a driveway access from Fremont Road, which moves across the Red Orchid property and onto the Shalimar property. Director Pedro explained that the driveway serves as a common driveway for both the Red Orchid and Wadhwani properties. Dr. Wadhwani explained that the driveway is needed for access to the Red Orchid property and was continued to the Shalimar property because there was no variance required to extend the driveway. David Pefley, neighbor on Maurer Lane, expressed support for- the project and requested that evergreen trees replace the proposed live oak trees in the landscape plan. Sue Welch, member of the Open Space Committee, explained the history of the project as stated in the California Regional Water Quality Control Board document. In 1998 the Town undergrounded a portion of the creek without proper permits. The Town then filled the open section of the creek with rip rap, without permits. The document also states that the correct baseline for evaluating the channel should be the condition of the channel prior to the work done by the Town of Los Altos Hills. She also explained that the Open Space Committee originally asked for the standard twenty-five foot setback along both sides of the fence because it is normal procedure for creeks. Commissioner Partridge asked Ms. Welch what the rationale was for suggesting that the paths be only four feet wide. Ms. Welch explained that in general the fewer crossings the better because they create shade that prevents vegetation from growing, and the paths may be used as roadways. Nancy Couperus, Open Space Committee, stated that creek setbacks are important because it: 1) Protects creek side vegetation. 2) Prevents erosion. 3) Keeps new buildings out of the range of potential creek bank failure and flooding. She feels that the Town has lenient creek setback rules and should look to PortoIa Valley as. an example. She stated that the Open Space Committee understands the request for a fifteen foot setback on the constrained property, but does not agree with reducing the setback on the other side of the creek. Planning Commission Minutes Approved April 5, 2012 March 1, 2012 Page 9 Dr. Wadhwani stated to the Commission that he appreciates the comments of the Open Space Committee and believes that he has shown in the past with the Shalimar property that he will work to improve his properties. He hopes that the assumption is not being made that he will do what is worse for the property. He explained that the property should be viewed as one five acre property and he would agree to a condition stating that the variance will be removed for the bridges and the setback if it becomes an issue. He hopes his neighbors keep in mind that a setback is being asked for where there is not a natural creels; but rather an engineered creek that is blocked off with culverts and does not contain wildlife. The alternative would be to leave the property in its current state. He explained that with a fifteen foot setback on one side, with a twenty-two foot creels, and twenty-five foot setback on the other side, totals sixty-two feet of undevelopable area, rendering the project illogical and undesirable. CHAIRMAN COLLINS CLOSED THE PUBLIC HEARING As discussion began, City Attorney Mattas stated that if the Planning Commission expresses conclusions about the setback on the west side of the property, in the present meeting, the Commission could be biasing themselves from voting on it in a future, site development hearing. He stated that the Commission should request input from the applicant to identify if it is their desire to have all but the west setback voted on in the present meeting. Dr. Wadhwani stated that he would like for the Commission to make a decision on the current application and at a future date he and his staff will return with another application for the setback variance. Commissioner Clow stated that the property is an unusual property because all three parcels are owned by one owner.' He explained that the Town has setback standards to protect property owners and provide privacy. He is satisfied with the applicant's proposal to allow for a deed restriction indicating if the property has a separate owner, then the eight foot wide bridges would have to be reduced to the Town's standard of four feet. His findings .for supporting the eight foot bridges are that the creek improvements will be superior to what currently exists, and the presence of the bridges is not likely to make a lot of difference in the overall project. Commissioner Partridge acknowledged that the project is an improvement to, the site which comes at a considerable cost to the applicant. He supports the improvements proposed in the project but does have concerns about the shading provided by the bridges. He understands that the bridges have been identified as ways of access to the property; however the nearby driveway serves the same function. As an alternative he would rather see two eight foot bridges or three four foot bridges. He identifies with the arguments presented by the Open Space Committee and the Regional Water Board. Commissioner Partridge stated that he would be more inclined to support the project with a combination of recommendations from staff's position and the position of the Open Space Committee and Regional Water Board. Commissioner Abraham agrees with Commissioner Clow's desire to approve the project as presented with the eight foot width bridges at three separate locations. He believes the project is of huge value to the Town because the Wadhwanis will not only repair and replace faulty work performed by the Town many years ago, but they also agree to maintain the creek channel in the Planning Commission Minutes Approved April 5, 2012 March 1, 2012 Page 10 future. The result is an initial savings to the Town of approximately one million dollars for the requested restoration of the creek; additional savings accrue in the future because of the maintenance savings. _Commissioner Harpootlian asked City Attorney Mattas if it would be appropriate to include a restriction against the land which requires that the bridges be taken down. City Attorney Mattas stated that the proposal, as he understands it, is to place a deed restriction on the primary Wadhwani, Red Orchid, and Blue Orchid properties. He explained that a land use approval typically runs with the land, not necessarily the owner of the land. If the applicant is open to the idea then staff can work with him prior to the City Council meeting to create a deed restriction that will be put in place, and will essentially be made irrevocable. Commissioner Harpootlian stated that he is fully supportive of the project. He views the creek as being an engineered creek and the willingness of Dr. Wadhwani to restore it to a functional creek is commendable. He would like to see the project moved forward and is supportive of Town efforts that will make the project more palpable. Chairman Collins stated that she would support the project if the bridges were reduced in width or if there was one less bridge. Chairman Collins requested to hear from the project biologist about the biological habitat of the creek. Devinna Ohlson, Project Biologist, stated that from a biological perspective the proposed project will be an improvement over the existing conditions. Chairman Collins asked Biologist Ohlson if there is any indication that the existing environment is a riparian habitat with wildlife. Ms. Ohlson stated that there is riparian vegetation at the northern end of the channel and at the downstream end. The proposal is to replant along the entire channel, which will be an improvement. Regarding wildlife movement, there could be wildlife within the area such as deer or mountain lions, but it is not likely they will be along this portion of the channel. The channel is culverted at both ends and for most wildlife to get to the open channel they would need to move through the culverts. Regarding the shading impacts of the bridges, they were considered as part of the project design and therefore not consider as having an impact. Commissioner Partridge asked the project biologist what the impacts would be. of the shading. He also questioned the applicant's engineer about the integrity of the banks. Ms. Ohlson stated it is likely that fewer plants will be growing in the shadow of the bridges. In terms of mitigation, mitigation plantings will most likely not be planted under the crossings and therefore other plantings that thrive in a shady environment will most likely grow. Eric Biland explained that for the current proposal, the bank stability depends of plant root structures helping to hold the banks in place. Coconut fiber is proposed to be laid overtop of the banks with plantings in between. The coconut fiber will hold the bank for three to five years until Planning Commission Minutes Approved April 5, 2012 March 1, 2012 Page 11 the vegetation grows in. Part of the planting palate will be shade loving plants that will grow and root directly under the bridge. He assured the Commission that rooting throughout the channel has been thoroughly thought out. Chairman Collins asked Director Chiu to discuss the downstream mitigation of flooding, which was brought up earlier in the hearing by a neighbor. Director Chiu explained that the project will need approval from FEMA, who will look specifically at design and the impacts of a one hundred year flood. The Town has reviewed the hydraulic modeling that was conducted for the project, and is confident that it will contain the one hundred year flood. The downstream impacts are limited by the culvert that crosses Fremont Road, which is not proposed to be changed and should not negatively impact the flow of the downstream channel. MOTION MADE, SECONDED, AND AMENDED: Commissioner Harpootlian moved to forward a recommendation to the City Council that based on the initial study, the City Council adopt the mitigated negative declaration and mitigation monitoring program in attachments one (1) and attachment two (2); forward a recommendation to the City Council to approve the three requested site development permits for the flood control and realignment project based on the environmental document and subject to the conditions of approval in attachment three (3) and mitigation measures shown in the initial study; and forward a request to locate three, eight foot wide bridges and paths within the thirty foot property line setbacks based on the findings in attachment five (5). The motion was seconded by Commissioner Abraham. Commissioner Partridge moved to amend the motion to include a landscape deposit to ensure that the habitat under the bridge grows in. The amendment failed due to a lack of a second. The motion stands as originally stated. PASSED BY ROLL CALL VOTE: AYES: Commissioners: Clow, Abraham, and Harpootlian NOES: Commissioners: Partridge and Chairman Collins ABSENT: None - ABSTAIN: None 3.5 LANDS OF EVANS; 11641 Buena Vista Drive; File #162-11-ZP-SD; A.request for a Site Development Permit for hardscape improvements and landscape screening for a an estate home approved on May 7, 2009. CEQA review: Categorical Exemption per Section 15304 (b) (Staff -Nicole Horvitz). Attachment 5 Town Of Los Altos Hills March 14, 2012 Staff Report to the City Council RE: LANDS OF WADHWANI, RED ORCHID, BLUE ORCHID, AND PEFLEY (APPLICANT: ROMESH WADHWANI), 26170, 26238, AND 26240 W. FREMONT ROAD, 26169 MAURER LANE; (FILE # 163-11, 239-11, 234-11 SD -GD -IS -ND -VAR, 235 -11 -EP). A SITE DEVELOPMENT APPLICATION FOR THE BARRON CREEK CHANNEL FLOOD CONTROL AND REALIGNMENT PROJECT INCLUDING A NEW DRIVEWAY ACCESS FOR 26238 FREMONT ROAD AND SETBACK VARIANCE FOR PATHS AND BRIDGE CROSSINGS. FROM: Debbie Pedro, Planning Director APPROVED BY: Carl Cahill, City Manager RECOMMENDATION OF THE PLANNING COMMISSION: That the City Council: 1. Adopt the Mitigated Negative Declaration (Attachment #1); AND 2. Approve the three requested Site Development permits for the flood control and realignment project, based on the environmental document and subject to the conditions of approval (Attachment #2) and mitigation measures as shown in the Initial Study; AND 3. Approve the requested variance to locate three 8' wide bridges and paths within the 30 foot property line setback, based on the findings of approval in Attachment #3. DISCUSSION Barron Creek at the project location has become overgrown with willow trees, weeds and silt which results in the obstruction of the flow of water. The creek is undergrounded in a pipe, both upstream and downstream of this project. On June 2, 2011, Public Works/Engineering staff proposed to undertake the Barron Creek maintenance project to mitigate flood hazards. At that time, Dr. Romesh Wadhwani, owner of the three affected parcels, requested that the Town defer the maintenance project and allow him to submit an application for realignment and maintenance of Barron Creek. Dr. Wadhwanii-submitted a plan to move a portion of the creek 40 feet to the west, clean the entire creek corridor and replant the creek with riparian vegetation. On March 1, 2012 the Planning Commission discussed this project and voted 3-2 (Partridge and Collins — No) to recommend approval of the project. The Commission found they could support a variance for the three bridges because the three properties are under the same ownership and suggested that if the properties were to be sold the bridges and paths could be removed. The two dissenting votes supported the overall project; however they would City Council Lands of Wadhwani, Red Orchid, Blue Orchid, and Pefley March 14, 2012 Page 2 of 3 like to see either a reduction in the number of bridges or to reduce the width of the proposed bridges and paths to four feet as allowed by the Town's Zoning Code. Fence The existing wrought iron fence on the Wadhwani property is approximately 5' to 10' away from the current top of bank. The applicant is requesting to relocate the fence to be 15' away from the proposed realigned channel on the east side of the. creek. The consulting biologist supports this request (see page 34 of the Barron creek report) because the proposed revegetation for the channel realignment will provide increased riparian habitat function .and value over the channel's existing condition and will not be affected by the proposed fence. The report further states that the fence should be setback a minimum of 15 feet from the center of any planted riparian trees or 15 feet from the top of bank of the realigned channel, whichever provides the greater setback distance. These comments have been included as condition # 13. Pursuant to Section 10-2.702(e) of the Site Development Code (Attachment #4), structures shall be setback a minimum of 25' fiom the top of all creek banks. The code section allows the Planning Commission to approve lesser structural setbacks without requiring variance findings. This section of the ordinance applies to all properties and requires the 25' setback from top of creek for all structures including but not limited to homes, pool houses, pools, accessory structures and fences. The Planning Commission supports this request. Variance for Paths and Bridges Four creek crossings are proposed to span the new channel from top-of-bank to top-of- bank. One bridge is for a common driveway and three other path/bridges are proposed to be 8 feet wide where the Zoning Ordinance allows 4 feet wide within the 30 foot property line setback. Per Municipal Code Section 10-1.1007(2)(b), specific findings must be made in the positive for the project to be approved. At the hearing, Dr. Wadhwani offered to place a deed restriction on the three properties offering removal of the additional width of the pathways and bridges if any of the parcels are sold. Condition #7 has been added to reflect this restriction. Based on the Planning Commission discussion staff has prepared variance findings in support of the bridge crossings including the unusual circumstance that the three properties are held by the same owner and the setback provisions requiring a buffer between properties would not be applicable. (Attachment #7) PUBLIC COMMENTS Prior to the close of the Initial Study comment period staff received comments from the Regional Water Quality Control Board (RWQCB) (Attachment #7). The RWQCB comments are summarized as follows: 1) The Board has concerns regarding the four bridge creek crossings; 2) they feel there would be an increased impact on vegetation due to shading by the bridges; 3) they have concerns about previous work performed on Barron Creek; and 4) they requested we reword part of the project description in the City Council Lands of Wadhwani, Red Orchid, Blue Orchid, and Pefley March 14, 2012 Page 3 of 3 Hydrologic section of the Initial Study. Staff has made changes to the Initial Study as requested in item 4. At the Planning Commission meeting, neighbor David Pefley addressed the Planning Commission with his concerns. Specifically, he would like to see evergreen replacement trees between his property and the Wandwani property to provide screening from the white roofs on the Wadhwani pool house. A second neighbor Tsuei Shyu, 26200 Catharine Court is a homeowner downstream of the creek improvements and was concerned about flooding of his property. The Town Engineer addressed his concerns stating that there had been a hydrology report prepared and that the project would not result in downstream/offsite flooding. One additional letter has been submitted on March 7, 2012 to the Town from Susan Mandle stating concerns for the creek corridor and citing the Town's adopted Guidelines and Standards for Land Use Near Streams (G&S). (Attachment #9) . She urges the Council to not make any accommodations for this project that would compromise the regulations that are in place to protect all creeks and streams in the Town. For clarification, pertinent sections of the G&S is included as Attachment #10. Staff has used the G&S to review the project including Section III.B1 which regulates encroachments between the top of bank and determined that the use of clear span bridges complies with the standards. Additional information regarding this project is included in the -March 1, 2012 Planning Commission staff report (Attachment #8). ATTACHMENTS 1. Mitigated Negative Declaration, Initial Study and Mitigation Monitoring Plan with attachments. 2. Conditions of approval 3. Variance Findings 4. Municipal Code Section 10-2.702(e) 5. Open Space Committee comments dated 12-19-11 6. Open Space Committee comments dated 3-1-12 7. (Governor's Office of Planning and Research March 1, 2012) Regional Water Quality Board letter dated February 28, 2012 8. Planning Commission Staff Report dated March 1, 2012 9. Letter from Susan Mandle, 25435 Fremont Road, dated March 7, 2012 10. Excerpts from the Guidelines and Standards for Land Use Near Streams 11. Project plans Report prepared by: Cynthia Richardson, Planning Consultant Attachment 6 Zoning Map to Apply the Zoning Designation of R -A (Residential -Agricultural) on Approximately 8.10 Acres of Land at the End of La Loma Drive Bounded by the Town of Los Altos Hills to the West, North, And East (Staff: D. Pedro) Consultant Planner Cynthia Richardson presented the staff report. Mayor Larsen opened the PUBLIC HEARING. Joe Kennedy, Unincorporated Santa Clara County, stated that he has been living happily without city services and does not want to be a part of the city. Council discussion ensued. Jim Abraham, Los Altos Hills, stated that this property is not a little island in the ' middle of the Town and that should be taken into consideration. Further Council discussion. Jim Abraham, Los Altos Hills, pointed out that the master pathway map shows three pathways on Mr. Kennedy's property and La Loma in its entirety is a private road beginning at Prospect. Joe Kennedy, Unincorporated Los Altos, said for as long as he.owns his home and if he gets annexed, he will not apply for any type of permit. Mayor Larsen closed the PUBLIC HEARING. Further Council discussion. MOTION SECONDED AND CARRIED: Moved by Vice Mayor Waldeck, seconded by Council Member Mordo and passed unanimously to adopt the negative declaration and waive reading and introduce the ordinance to prezone the unincorporated La Loma Drive pocket to the residential agricultural zoning district and direct staff to initiate annexation of the one parcel in the unincorporated La Loma Driveop cket. C. LANDS OF WADHWANI, RED ORCHID, BLUE ORCHID, AND PEFLEY (APPLICANT: ROMESH WADHWANI), 26170, 26238, and 26240 West Fremont Road, 26169 Maurer Lane, File # 163-11, 239-11, 234-11 SD -GD -IS - ND -VAR, 235 -11 -EP. a site development application for the Barron Creek Channel Flood Control and Realittunent Project including a new driveway access for 26238 Fremont Road and setback variance for paths and bridge crossings; CEQA Review: Mitigated Negative .Declaration (Staff: D. Pedro) Consultant Planner Cynthia Richardson presented the staff report. Council discussion ensued. 7 City Council Special Meeting Minutes March 14, 2012 Mayor Larsen opened the PUBLIC HE, ARING. Dr. Wadhwani outlined the project before the Council. Dave Pefley, Los Altos Hills, spoke in favor of the project. Sue Welch, Open Space Committee Member, Los Altos Hills, clarified the Open Space Committee's comments that the creels is actually considered a creels, not a drainage ditch. Nancy Couperus, Open Space Committee Member, Los Altos Hills; stated concerns about maintaining the 25 feet structure setback on the west side of the creels. City Attorney Steve Mattas stated that the request for the modification of the setback on the west side of the creels is* not currently before the Council. He recommended that the Council not make any comments about the setback on the west side of the creek as it could come back in the future, and the Council would want to reserve the opportunity to hear testimony at that point and then make a determination. Eric Clow, Los Altos Hills, stated that this is an extremely unique situation in that the land on both sides and the culverts at both ends are owned by the same person. Gary Sawka, Los Altos Hills, appreciated that Dr. Wadhwani bought the properties and was in support of the project. Pat Ley, Chair of the Environmental Design and Protection Committee, Los Altos Hills, stated that culverts don't stop wildlife, they encourage it. Mayor Larsen closed the PUBLIC HEARING. Council discussion ensued. Eric Biland, Engineer to Applicant, responded to questions from the Council. Dr. Wadhwani also responded to questions from the Council. MOTION MADE AND SECONDED: Moved by Vice Mayor Waldeck, seconded by Council Member Radford and passed unanimously to approve the prosect as stated. City Attorney Steve Mattas recommended the motion be stated to read as follows. MOTION AMENDED, SECONDED AND CARRIED: Moved by Vice Mayor: Waldeck, seconded by Council Member Radford and. passed unanimously to City Council Special Meeting Minutes March 14, 2012 amend the previous motion and adopt the mitigated negative declaration and approve the three requested site development permits for flood control and realignment project based on the environmental document and subject to the conditions of approval. and mitigation measures as shown in the initial study; including the modification revising Condition #7 and. to approve the requested variance to locate the three, eight foot wide bridges and paths within the 30 foot property line setback based on the findings of approval in Attachment 3 as modified. G. UNFINISHED BUSINESS A. Town Goals 2012 - Personal and Public Safety for All Residents 1. Update on the Fremont Bike Path/Safe Routes to School (VERBS) (Staff- R Chiu) Public Works Director Richard Chiu provided an update on the Fremont Road Bike Path Project. 2. Update on the Arastradero Path (Staff: R. Chiu) Public Works Director Richard Chiu provided an update on the Arastradero Path project. 3. Traffic Safety Committee Report (Council Member Summit) Council Member Summit provided an update of the first meeting of the Traffic Safety Committee. 4. Buena Vista Intersection (Staff: R. Chiu) Public Works Director Richard Chiu provided an update of the Buena Vista intersection. Council discussion ensued. MOTION SECONDED AND CARRIED: Moved by Vice Mayor Waldeck seconded by Mayor Larsen and passed unanimously to place a convex mirror at the Buena Vista Intersection with Pale Mill Road and Moody Road 7. NEW BUSINESS A. Annexation and Sewer Service Policy Discussion with Regard to the Eastbrook/Magdalena Neighborhood (Staff: D. Pedro) Planning Director Debbie Pedro and Public Works Director Richard Chiu jointly presented the staff report. City Council Special Meeting Minutes March 14, 2012 Attachment.7 July: 5, 2012 LIVE OAK ASSOCIATES, INC. an Ecological Conwlting Firm Cynthia Richardson Town' of Los Altos Hills Planning Department 26379 Fremont Road Los Altos, Hills, CA 94022 Subject: Addendum to the biological evaluation prepared for the Barron Creek realignment in Los Altos Hills, California (PN 1584-01) Dear. Cynthia: At -your request,-. Live Oak Associates, Inc. (LOA), has prepared .this addendum to the biological evaluation (LOA 2012a) -dated January 3,.2012, and.prepared for -the proposed Barron Creek channel realignment in Los Altos Hills, California. This addendum addresses -revised impacts resulting from achange to the proposed realignment described in. the January 2012 biological evaluation report. The project originally proposed to realign the channel 40 ft. west of the existing channel and remove an unspecified number of non -riparian trees. The project now proposes to realign the channel 23.5 ft. west of the existing channel alignment, remove 17 non - riparian trees, and relocate one. tree (Kimley-Horn and Associates 2012). The original proposal to.construct four crossings over the realigned channel and to remove 42 trees below the top of bank -will -remain unchanged. Impact Analysis Disturbance to Waters of the United States or Riparian Habitats_ The original proposed channel realignment would have temporarily impacted approximately. 0. 12 acres of the existing Barron Creek channel (LOA 2012a), Realignment of the channel. 23.5 ft. west of the existing channel would result in temporary impacts to approximately 0.11 acres .of wetland channel within Barron. Creek. Impacts to riparian trees as described.in section 3.3`.5 of the biological evaluation report (LOA.2012a) remain the same. Mitigation measures to: compensate for impacts to the.channel will remain as described in section 3.3.5 of the biological evaluation report (LOA 2012a) but will compensate for impacts to 0.11 acres. All measures to minimize impacts to riparian habitat; including the setback of the estate fence on the east side of the channel, will. also remain unchanged. Section 3.3.5 of the referenced reportis included in Appendix A. San Jose:.6.840 Via:del.Oro, Suite 220 Scan Jose, CA 95119. Phone:.(408) 224-8300:. Fax:J4o8) 224=1411, Oakhurst: P.O.- Box 2691.:39930 Sierra. Way, Suite B .-Oakhurst, CA 93644 . Phone: (559) 6424880 . Fax:: (559) 642-4883 Ba.Mrsfield:8206'Stockdale Highway; M10-293.. Bakersfield, CA 9331;1 Section' of the biological evaluation report (LOA 2012a) also discussed an approximately 400 sq. ft. patch of hydrophytic vegetation as being a potential wetland and potential water of the U.S. on the basis that it abuts the channel. Subsequent analysis of the feature by LOA led to a revised conclusion that this patch does not constitute a wetland and, therefore, should not be a water,of the U.S (LOA 2012b). However, the U.S. Army Corps of Engineers is the final arbiter and may take jurisdiction over this feature despite our analysis. If so, then the regulatory issues as described in section 3.3.5 of the .biological evaluation report would apply. Impacts related to the construction of the four channel crossings as described in section 3.3.5 of the biological evaluation report (LOA 2012a) are unchanged. Removal of Non -Riparian Trees The project as described in the biological* evaluation report (LOA 2012a) described an unspecified number of non -riparian trees to be removed: That number has now been determined to be 1.7 non -riparian trees occurring above the top of bank. Additionally, one coast redwood will be relocated to another non -riparian location onsite. The mitigation measures for the removal of non -riparian trees as described in section 3.3.6 of the biological evaluation report (LOA 2012a) would adequately offset tree removal impacts. The mitigation measures for trees to be retained as described in section 3.3.6 of the report (LOA 2012a) should be followed for the relocated redwood. Section 3.3.6 of the referenced report is included in Appendix A. Other Impacts to all other biological resources (i.e., habitat for special status plants and animals, active raptor and migratory bird nests, bat nursery sites, habitat for native wildlife, movement of native wildlife, and degradation of water quality) would remain unchanged. If you have any questions regarding our conclusions, please contact me at dohlsongloainc.corii or (408) 281-5886 at your earliest convenience. Sincerely, Davinna Ohlson, M.S. Senior Project Manager Plant/Wildlife Ecologist References Kimley-Horn and Associates, Inc. 2012. Barron Creek channel improvements, permit set. San Jose, CA. Live Oak Associates, Inc. Live Oak Associates, Inc. 2012a. Barron Creek Wadhwani channel realignment biological evaluation, Town of Los Altos Hills, California. San Jose, CA. . 2012b. Investigation of potential waters of the United States, Barron Creek Wadhwani, Town of Los Altos Hills, California. San Jose, CA. Live OakAssociates, Inc. APPENDIX A RELEVANT IMPACTS AND MITIGATION MEASURES FROM "BARRON CREEK WADHWANI CHANNEL REALIGNMENT BIOLOGICAL EVALUATION, TOWN OF LOS ALTOS HILLS, CALIFORNIA"(JANUARY 2012) 3.3.5 Disturbance to Waters of the United States or Riparian Habitats Potential Impacts. Barron Creek is a water of the U.S. and California subject to regulation by the USACE, RWQCB, and CDFG. If the USACE determines that the wetland patch abutting Barron Creek is under their jurisdiction, then this feature will be regulated by the USACE and is. also likely to be regulated by the RWQCB. Realignment of the straightened portion of the channel and maintenance activities at the upstream end of the channel will result in temporary impacts to approximately 600 linear ft. and 0.12 acres of wetland channel within Barron Creek and will also result in the removal of riparian trees, including: • Approximately 19 willows in the bed and along the lower banks of the upstream end of the channel; and • Approximately 23 willows occurring below the top of bank at the downstream end of the channel. The placement of fill within wetlands occurring in the existing channel to accommodate the realignment would be considered,a significant impact. Removal of the willows from all portions of the channel as well as removal of any other associated riparian trees at the downstream end of the channel would also be considered a significant impact. Additionally, channel realignment would permanently impact approximately 400 sq. ft. of the abutting wetland. For the purposes of CEQA, impacts to the abutting wetland patch would be considered minimal due to the small size of the area being affected and, therefore, would be considered a less -than -significant impact. Four crossings are proposed to clearspan the new channel alignment. Because they are one of the design elements for the new alignment, they would not be considered an impact to waters of the U.S. Mitigation. Due to the nature of the proposed project activities, full avoidance of jurisdictional waters and sensitive habitats on the site is not possible. Therefore, the project proponent should implement minimization and compensation measures to reduce impacts to jurisdictional waters and sensitive habitats to a less -than -significant level. Minimization. Because full avoidance is not possible, actions should be taken to minimize impacts to aquatic and riparian habitats. Measures taken during construction activities should include placing construction fencing around the aquatic features or riparian areas to be preserved to ensure that construction activities do not inadvertently impact these areas. Live Oak Associates,. Inc. Any proposed future lighting on the property (e.g., footpath lighting) should be designed to minimize light and glare impacts to the riparian corridor. To the maximum extent practicable, light sources should not be visible from riparian areas and should not illuminate riparian areas or cause glare on the opposite side of the channel (e.g., to neighboring properties). Additionally, with the exception of the willows to be removed at the upstream end of the channel, proposed realignment activities should be designed and situated to avoid the loss of trees within and adjacent to the channel to the maximum extent practicable. The Town's creek protection ordinance requires all structures to be set back a minimum of 25 ft. from the top of bank of all creeks. The existing Wadhwani estate fence is located within approximately 10 ft. of the top of bank along the east side of the channel. The proposed revegetation for the channel realignment will provide increased riparian habitat function and value over the channel's existing condition. Therefore, rather than conforming strictly to the Town's creek protection ordinance, the new estate fence should be set back in a manner that accommodates the intended function and value of the channel revegetation plan. This includes a minimum setback of 15 ft. from the center of any planted riparian trees (i.e., 15 ft. from the tree trunk) or 15 ft. from the top of bank of the realigned channel, whichever provides the greater setback distance. Compensation. An onsite revegetation plan should be developed to compensate for temporary impacts to 0.12 acres of wetlands occurring within the channel and the loss of the willows and other riparian trees. A formal tree survey should be completed to determine the actual number of trees to be removed. It is expected that all compensation measures can be accommodated within the proposed channel alignment, as the channel is proposed to be planted with native wetland vegetation (section 1.1). If the new channel alignment cannot fully accommodate the compensation measures, then offsite restoration would be necessary. Compensation measures should include: • Creation of 0.12 acres of wetlands within the channel. • Replacement of all willows removed from anywhere below the top of bank along the existing channel alignment at a minimum 1:1 replacement -to -removal ratio. Replacement of the nineteen willows removed from the upstream end of the channel should occur along the upper banks of this same reach of the creek. Replacement of the willows removed from the downstream end of the channel can be planted along the realigned portion of the creek. All of the willows occurring in the creek were originally planted as pole cuttings and occurred as natural recruits. Because they have become a nuisance by obstructing the flow of water through the channel, the Town has indicated its desire to have these trees removed. Therefore, the recommended replacement -to -removal ratio for willow impacts as described above was developed with the Town and through informal conversations with the USACE and CDFG (Paula Gill, pers. comm., February 2011; Dave Johnston, pers. comm., February 2011). This mitigation is conceptually consistent with the requirements of these regulatory agencies. To the maximum extent practicable, removed trees should be replaced with like species. Due to the flow obstructions created by the existing willows and the project's objective to prevent future obstructions, other riparian tree species (e.g., coast live oaks and California sycamores) may be substituted in consultation with a qualified biologist. Live Oak Associates, Inc. • Replacement of all other native riparian trees (i.e., riparian trees occurring beyond the top of bank, should removal be required) at a minimum 2:1 replacement -to -removal ratio. To the maximum extent practicable, removed trees should be replaced with like species. • Reseeding or replanting of riparian or wetland vegetation (i.e., a combination of trees, shrubs, and herbaceous vegetation) along the channel benches and banks. These measures should be implemented according to a site-specific revegetation plan. This . mitigation plan would need to be approved by the responsible agency prior to the start of project activities. The revegetation plan should: 1. Designate suitable replanting areas. 2. Describe the methods by which the revegetation will occur, including species to be planted and plant installation guidelines. 3. Develop a timetable for implementation of the plan. 4. Outline a monitoring methodology and establish appropriate performance criteria. 5. Describe remedial measures to be performed in the event that initial revegetation measures are unsuccessful in meeting the performance criteria. 6. Describe site maintenance activities to follow revegetation activities. These may include weed control, irrigation, and control of herbivory. This measure will reduce impacts to waters of the U.S. and sensitive habitats to a less -than - significant level. Regulatoa issues. The applicant should also comply with all state and federal regulations related to work that will impact jurisdictional waters occurring on the site, which includes Barron Creek and may also include the wetland patch abutting the creek, should it be regulated by the agencies. This may require obtaining a Section 404 Clean Water Act permit from the USACE, Section 401 Water Quality Certification from the RWQCB, and Section 1600 Stream Alteration Agreement from the CDFG prior to initiating any realignment and maintenance activities, if deemed necessary. Permit conditions typically require a mitigation plan outlining compensatory measures for impacts to all jurisdictional features. As such, while impacts to the abutting wetland would not be considered significant and, therefore, would not require mitigation under CEQA, a small amount of additional mitigation may be required by the agencies for impacts to the abutting wetland in order to comply with their permit conditions. It is expected that the agencies would seek mitigation in the form of onsite wetland creation or enhancement. The project proposes to plant the channel of the new alignment with wetland vegetation. This would accommodate both temporary impacts to wetlands occurring within the existing channel and permanent impacts to the wetland patch abutting the creek. 6 Live Oak Associates, Inc. 3.3.6 Tree Removal Impacts Potential Impacts. Channel realignment and maintenance activities will include the removal of approximately nineteen willows currently along the bed and lower banks of the upstream portion of the channel, approximately 23 willows at the downstream end of the channel, and one young coast redwood in upland habitat beyond the top of bank at the downstream end of the channel (section 3.15). The actual number of trees to be removed will depend on the final project plans. The removal of trees would constitute a significant impact. Construction activities that lead to the injury, decline, structural failure, or death of a tree proposed to be retained on the site would also constitute a significant impact. Mitigation. For mitigation measures related to the removal of trees within the riparian habitat of Barron Creek, refer to section 3.3.5. The following measures are recommended for trees occurring outside of the .riparian habitat. A formal tree survey should be completed to determine the actual number of trees to be removed from the site. Tree removal should occur pursuant to relevant Town ordinances, including securing a tree removal permit and complying with the permit conditions, All trees to be removed should be replaced onsite at a minimum 2:1 replacement -to -removal ratio (two trees planted for each tree removed) or as specified by the Town, whichever is greater. A monitoring plan for the replacement trees should be developed and submitted to the Town during the permit process. The basic components of the monitoring plan should consist of final success criteria, specific performance criteria, monitoring methods, data analysis, monitoring schedule, contingency/remedial measures, and reporting requirements. For trees to be retained, impacts to any .retained trees during the construction and operation phases of the project can be reduced to a less -than -significant level by conforming to the following guidelines. These measures should remain in place for the duration of construction activities at the project site: • The project proponent should retain a consulting arborist prior to any ground disturbance activities. The consulting arborist would develop a tree -protection plan outlining specific procedures to ensure that retained trees are protected during the construction phase. • Prior to any ground disturbance activities, fencing should be installed around the drip -line of all retained trees occurring within the development envelope, and the fencing should remain in place throughout the construction phase of the project. The type of fencing to be utilized would be at the direction of the consulting arborist. • Any limb or root pruning to be conducted on retained trees should be approved and supervised by the consulting arborist and should follow best management practices developed by the International Society of Arboriculture. • Supplemental irrigation to retained trees should be applied as determined by the consulting arborist. • If any of the retained trees should be damaged during the construction phase, they should be evaluated at the earliest possible time by the consulting arborist so that appropriate measures can be taken. Live Oak Associates, Inc. Implementation of the above mitigation measures would reduce tree impacts to a less -than - significant level. Live Oak Associates, Inc. Attachment 8 3. The Heritage .Oak tree shew6en street 3 of 95 to b ° near V 1V 1V !La r th ft new driveway on the Red Orchid property shall not be removed. The driveway shall • �a��e preserve this tree to the satisfaction of the Planning and Engineering Department. 7. Applicant shall prepare and record an irrevocable deed restriction on the three properties requiring that the additional width of the bridges and paths shall be removed by the applicant or its successor and the area returned to landscaping as specified in the approved landscape plan if the property that. contains: such bridge or path is conveyed to any person other than the applicant, applicant's family, and entities -(including trusts, charitable trusts; or foundations) owned or controlled by applicant and applicant's family. However this reatfimmQni for hrin my -any e. • •.� -•re • i •� n u�; • i •i u e i• a �. • i.•..e(;N • • •e•. •� •.u,• a •� u • • •.i �• • •.�- The deed shall- be approved as to, form by the City Attorney and City. Engineer and the deed shall be recorded prior to the Certificate of Completion for this project. 14. 'The proposed fence on the -east .side of the lglocated channel -shall beset back in a manner that accommodates the intended function and. value of the channel revegetation plan. This includes a minimum setback of 15 ft, from the��es er. 49 G. r 4hi-_ top of bank of the realigned channel.. Wgibliever. is SFea.No»L•r d replacement ri arian trees shall be Ilianted within 13 feei of thert6locatod fence 6nthieastsid of the new channel `may owngl= plant trees for l n& an ngnu[poses between the harm 1 -and the relocaJC4 fence without maintaining a 15 foot setback from the f n 25. :The property owner shall dedicate a. minimum- 27' wide storm drain easement to the Town: The property owner shall provide legal description and plat exhibits that are prepared by a registered civil engineer or a licensed land. surveyor and the Town shall prepare the dedication document. The dedication document, including the approved exhibits, shall be. signed and notarized by the property owner. and returned to the Town prior to start work. one err -n ly with Attachment 9 Municipal Code 10-2.702(e) Creek Protection. Structures shall be set back a minimum of twenty-five (25) feet from the top of bank of all creeks. Greater setbacks may be required along major creeks in the Town; however, lesser setbacks may be allowed where approved by the Planning" Commission. Improvements required to all creeks shall . be accomplished to appear natural and to maintain the natural meandering course of the existing creek. Creeks and banks shall be protected so as to remain in their natural state as much as possible. They should not be disturbed by the building or grading process. No grading shall be allowed in creeks or within the required setbacks from top of bank. Siting of structures shall be done with safety as a primary concern. Safety concerns and preservation of riparian habitat are required to be simultaneously addressed when designing development and required improvements to creeks. (§ 15, Ord. 299, eff. December 11, 1985; §§ 6, 7, Ord. 370, efE May 20, 1994; § 1, Ord. 504, efE October 28, 2006) Attachment 10 PgOPOSED UPDATED FINDINGS FOR APPROVAL OFA VARIANCE FOR PATH AND BRIDGE ENCROACHMENTS WITHIN THE PROPERTY LINE SETBACKS LANDS OF WADHWANI, RED ORCHID AND BLUE ORCHID. . 26170, 26238, 26240 W. FREMONT ROAD - Background In. connection with the inter -related Site Development Permits for re -aligning Barron Creek on portions. of Parcel 175-35-002 ("Red Orchid"), 175-35-0:14 ("Blue .Orchid") and 175-35-036 ("Main Parcel"), the Applicant is proposing to construct four bridges over the proposed realigned channel of Barron Creek.. Starting from the north, closest to Fremont Road, the Driveway Bridge, is .part. of a common driveway with..the..adjacent Red Orchid- property. . Although this fust bridge and associated driveway are within the property line setbacks of the Main. Parcel and Red, Orchid, they are permitted by Town Code as part of a common driveway. The remaining three proposed bridges are garden crossings intended to provide access from the Main Parcel to the central portions of the -Red Orchid and Blue Orchid properties '...,,, from EI b. Each bridge is proposed to be eight feet wide and. would be- connected to the: Main Parcel property line by pathways, of the same 8 foot. width; pathways of the same width on the Main Parcel would then connect to the existing perimeter -walkway on the Main -Parcel. The e4 arden Crossing #1 is located- within the mandated property; line setback from the Main, Parcel property.line. (It is ' approximately feet at its closest point to the common property line between the Red Orchid and Main•Parcel.) The eight foot wide pathway from the east end of the bridge to -the existing pathway on the Main Parcel :is also within the 30 foot property'line setback.area.-At fhe :west end of he hridge: 2 f `P bf Fath = aj is within the setback Garden. Crossing. #2 is located within the property line setback area -41=the7B1w Qr,44dmailL Parcel_ property.. The pathway connecting .to the Main Parcel is also within -the 3.0 foot ens, e� 43 0 1 3993 1 i setback area of both the Blue Orchid and Main Parcel properties. In addition to the bridebridgr, i c ]f 4_ feet -of athwav �n the east end and 2 feet on tbQ west end is within h setha k ar a. €e -r -Garden Crossing- Nthe -e :t -e Y -fieq (abeut I � .{ �3 is located within the setback area of the Blue Orchid property where it adjoins the Main. Parcel. The - br-idge 1�ngth.is eutsider-ope"- lime -sethsek fee -path from the eastern end of the bridge to the perimeter walkway on the Main Parcel is located in the setback areas of both the Blue Orchid and Main Parcels. Tn addition. 2 f .et of athway at the wot ad of the bridu is within thcserhark areA. The Code permits "walkways" within the property line setback areas. Walkways are defined as being four feet wide. Thus, the presence of.bridges or walkways up :to four feet wide.within the. setback areas is allowed by the Code. However, a variance is necessary for any bridge or pathway located in the property line setback area with a width greater than four feet. In summary, Applicant is seeking variances with respect to the following: - Garden Crossing #1 -..... _._-_.._ ....... ...... .... . 44* :._ 4 5 foot len ' 2 ._ length of Garden Crossing 4-J h� four feet -width -beyond authorized four feet -Pathway from eastern end of Garden Crossing, bridge to Main. Parcel property line; (approximately. -2-1-A-14 feet in length) for four feet of width beyond authorized four feet. 'and 2 feet of pathway at western and of bridgQ - 30 foot Pathway from property line to existing Main Parcel perimeter path, for width beyond four feet - Garden Crossing #2 foot llcngth of Garden Crossing; # ? bridge, to extent exceeds four foot width =- foot Pathway from east end of bridge to Main Parcel property line, and 2 f e of Vathw y at western end of bridge to extent exceeds allowed 4 foot width - 30 foot Pathway from Blue Orchid property line to existing Main Parcel perimeter path, to extent exceeds allowed four foot width - Garden Crossing #3 10; 3� 1 !;X301339.1J. 2 - Eeste- _ most -11.5 aet W ^yvvt Garden Crossing bridge�� •�'.. ^-,.,,:a PfegeM9 four width beyond allowed four feet pathway froom to Main Parcel property line, Aad2. fee' of a h = av at western end of hrifour:foot. width beyond allowed four: foot width - 27 foot pathway on Main Parcel from property line to existing perimeter: path, four foot of width in excess of generally allowed four foot "walkway" width._ The purpose of the variance(s) is to allow..the bridges and connecting walkways (to .extent they ate located in. property line setback zones) to be built to a width of eight feet as opposed to the maximum width of four feet otherwise allowed under Planning 4a€€ss tiff's interpretation. of the Town's Municipal Code.. The requested additional width is necessary to (1) allow the bridges and.connecting paths to be utilized. by landscaping (e.g., mowers, .etc.) and other small maintenance 'vehicles to move freely between the two "Orchid"- properties and the Main Parcel, (2) provide more convenient pedestrian access between the Main Parcel -and the Red and Blue Orchid properties. Th a v following findings ��support Oa nroval ofa variance for the additional width of the.bfidges and pathways. 1. Because of exceptional and extraordinary circumstances applicable to the subject property, including size, shape; topography, location or surroundings, the strict application of the provisions of this Title is. found to deprive: such property of privileges enjoyed by other properties in the vicinity and under identical zoning classification; The three., properties which are the subject of this variance request are . currently in common ownership. The Main Parcel was developed approximately eleven years ago with a large home on. the center of the lot and a .pool and gardens at the south end. In 2011; the, two parcels to the immediate west -of the Main. Parcel (Red- Orchid and. Blue Orchid) were purchased by entities controlled by the owner of the. Main Parcel: Thus, all three parcels are in 'common beneficial . ownership. " Tl►e "Orchid" properties were each occupied by undistinguished -homes built in the early 1950's, which Iave. been `demolished. The Owner currently intends to develop each. of the Orchid parcels with a house: to be used_byy persons visiting the Owner. No plans have been prepared or submitted for. the.use or. development of the "Orchid" properties; the current Site Development and Variance Applications do not propose any development beyond the west end of the. three proposed garden crossing bridges athways. Currently, the area near the western'boundary of Main Parcel' is occupied by a man-made channel for Barron' Creek and its associated channel easement. This channel 'effectively limits any pedestrian or vehicular access from the Orchid parcels to the Main Parcel: The -Site Development Permit application .proposes to - realign the existing Barron Creek channel approximately 482A feet to the west of its current position, onto ,the :eastern portion of the Orchid parcels:: The realignment is =intended to' improve the -flow characteristics of the channel and reduce:the existing flood extents, due to the channel's .current configuration. Also; for various �n�avr+iT�,r'r�r3ols�3ar 3,�„ 3 I easons. the existing. channel is severely degraded, and the new channel will provide substantially greater biological value. Although the stream channel is- proposed to be relocated, the relocation will not change the fact that the stream channel will : remain as : a barrier to access between the Main Parcel and the developable -areas of the Orchid properties.. The presence of ,a stream channel =dividing.the Main Parcel :from the .developable. areas of the adjacent. Orchid parcels is an exceptional and extraordinary: circumstance not.generally applicable toother properties in the ,vicinity. Only a small percentage of the properties in the Town .are affected -by an open stream channel which prevents access between .adjacent .properties or portions of the same parcel. Immediately upstream and downstreamfrom the Properties, Barron_ Creek flows in culverts and does not present a barrier to movement between •and within parcels. The vast majority of the. properties .in the Town are not affected by an open stream channel that prevents access by small landscaping or maintenance vehicles between different portions of a parcelor between adjacent parcels. For most parcels,, small landscaping or maintenance vehicles may access the full area of a parcel or pass freely from one adjacent parcel to another (subject' obviously to authorization from parcels in question:) The presence of an, open stream corridor separating the Orchid parcels into mutually inaccessible portions: and preventing access between the Main Parcel and -developable areas of the otherwise adjacent Orchid parcels Is,an exceptional circumstance which does not affect the.vast-majority of parcels in the vicinity of these Properties. Strict compliance with the four foot width limitation for walkways. and bridges_ would eliminate the ability to build -a bridge across the stream.corridor thav would be wide enough -,to allow passage for, typically -sized Iandscaping' vehicles or small construction/maintenance vehicles. Although the Project willprovide a driveway bridge over the channel near Fremont'Road; .this driveway bridge would provide awkward and .inconvenient access for landscaping .and maintenance vehicles needing to pass from one parcel to another. Multiple bridges are necessary because the Main Parcel is. divided. into various areas and gates and other constraints make it difficult to. move. larger ' landscaping and maintenance equipment from one. area of. the: Main Parcel to others. While, in the abstract a single: 8 'foot garden crossing bridge could provide maintenance and Iandscaping vehicle -access. across the drainage channel, providing multiple bridges accessible to lands_ caping/maintenance vehicles minimizes. the need for such vehicles to make long traverses near the banks on the east side of the relocated creek. channel. To protect such. drainage channels, the Town generally requires a 25 foot setback from. the top of the creek bank. This ical 25 foot wide stream protection ares extends beyond the Main Parcel property line: A limitation to one garden crossing bridge would increase the need and frequency of .landscaping and maintenance vehicles to travel through this setback area to reach other sections more distant from . the bridge, increasing the potential for landscape and habitat disruption, soil disturbance and erosion/siltation in this sensitive area near- the channel.' Providing -three bridges as proposed minimizes the .need for landscape and maintenance vehicles to, pass back and forth in this sensitive area along. the creek. �am�� 4 2. Upon the granting of the variance, the intent and purpose of the applicable sections of the Zoning Ordinance will. still be served and the recipient of the variance will not be granted special privileges: not enjoyed by other surrounding property owners. The apparent. purpose of the properly line setback is to prevent or minimize structures near the boundary of one property from having a negative impact on -an adjacent property. .Under the circumstances of these proposed variances, the variances are compatible -with this purpose. The properties: for .which the variances . are requested ,are under common ownership. Thus,, the somewhat wider pathways and-@eAiem-e4 bridges within the setback areas will not have. any visual or other impact on the adjacent owners. Because the Main Parcel and Orchid properties are not being merged, itis:lep that. at some point in the future the Main Parcel and the Orchid properties ' will return to separate ownership. However, any person considering the purchase of any of the parcels after the proposed Garden Crossing. -bridges and -pathways are built: will be aware of the bridges and - pathways in the setback areas. if the bridges/walkways four feet. widerthan. typically allowed by Code are objectionable, a potential new owner can..(1) chose to not. purchase the property in question;;:(2) removelmodify pathways or bridges in the setback. areas or bargain for their removal in- connection. with the purchase of such property (subject .to the then=applicable rules of the Town and any other agency with regulatory authority over the drainage channel). Thus, with the proposed variances no property owner will be involuntarily subjected to construction in the setback area which is objectionable.. In addition, the rules of the.Town and agencie's-regulating the new channel will -,require -,that the channel -area be heavily vegetated, further minimizing. any visual impact of the bridges and pathways on one property to any adjacent owner. of the variance will not grant any- specialprivilege to: the Applicant.. . ,.a As noted.above, the vast majority- of' the surrounding property owners do not have open stream channels, or drainage ditches cutting through their properties and- thus landscaping and maintenance vehicles are free to access any area of their properties, or to cross from.one adjacent- property djacentproperty to another, without the necessity of using -any bridge. Thus;providing the three 8 foot.- wide garden crossings -only provides'the Applicant some approximation of the ability -most -land owners -have to freely move . such equipment around heir properties. Being, able ; to move such equipment within propertyand'among adjacent -properties is in. no sense a "special privilege." Barron Creek does traverse several .properties immediately upstream and downstream of the subject properties.. However, in thoseproperties the creek runs in. underground. 'culverts.. Both pedestrians and small.:equipment are free to cross the path of the creek alignment on those properties without the need for any bridge or. the construction. of. a bridge or path limited to a4 foot_width. Again,. the variance would grant no "special privilege as -compared to those adjacent properties in which,Barron Creek'runs in culvert and therefore does not raise access issues. Finally, the applicant has offered to. place an irrevocable deed re'striction.on the properties that. would require that when any one of the properties- are sold with the result of separate ownership of he Main Parceland- Or hid Par : els..the additional width .of the. bridges and paths will be removed by the applicant :or its successor on the affected properties .and returned.to landscaped areas. t -74J 1;91171 5 3. The granting of such variance will not be materially detrimental to the public: welfare or injurious to the: property, improvements or uses within the°immediate vicinity and within the same zoning district. The bridge and pathways which are -subject to these variance(s).are located so. as to be essentially invisible from the adjacent public roadways.. The bridges will be located so as to spanthe - channels and be of height as to not impair the hydrologic capacity of the stream channel. The additional: width. (eight feet. vs four feet) of the bridge and walkway will not have any significant environmental impacts. The project engineer, landscape engineer and the environmental biologist all conclude that the bridges will not have a significant effect on the environment notwithstanding the shading that will occur: under'the bridges. The additional riparian area that will be shaded by the bridges. will be compensated for in the . overall revegetation plan. The overallimprovement of the biologic habitat within the creek channel and the selection of appropriate plantings for the areas .under the bridge will result in a lessthan significant biologic impact.. Because of. their location near- the ' interior property- lines of the Main Parcel and - the Orchid parcels, the somewhat wider bridges and walkways will not impact or be readily visible from any. other nearby properties under different ownership. No adjacent parcel not -under common ownership would have a. close or direct view to the two northern- most garden crossings. While it is possible that. the southern -most garden bridge (Crossing #3) could be visible from the property to the immediate south, neither this bridge or nor its connecting paths would be in or near. the setback, area with that, adjacent residence, and under the Code it would be possible to build other structures in the -Blue Orchid property that would be much closer and more visible to the property- to the south than the small bridge and pathway. proposed under the variance. - In any event, the visual impact of an .8 foot wide bridge vs the Code authorized four foot wide bridge Would be insignificant. 4. The ..variance : will not authorize a use or activity which is not otherwise expressly authorized bythe Zoning. District. regulations governing the parcel of property. Paths and bridges are authorized'uses within setbacks in the R -A zoning district. The increased width will allow small maintenance vehicles to move, freely between the properties and will provide: more convenient pedestrian access between the Wadhwani -property 'and the 'Red and Blue: Orchid properties.. The variances requested do not involve. any change to the "use" of any of the three .properties in. question. The bridges and pathways: are consistent with and accessory to the continued planned residential use of. all three parcels. The Code would permit the construction of three garden crossing bridges, and -the walkways_ connecting those bridges .to existing pathways. on .the Main Parcel. 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ONtl 1 saweij ON 3uud 4utaS u!eW 4xaN sno!naid d(1 apdD ledulunW s11!H so;ip so -I I I IuomgovuV •suol�ipuo�—IEnoiddy—saauEue� (Z)LOOI'I'Oi Albany McKenna Long Atlanta ��,� `X: � lch dgeLLP Brussels Denver 121 Spear Street • Suite 200 San Francisco, CA 94105 Los Angeles Tel: 415.356.4600 New York mckennalong.com STEVE ATKINSON 415.356.4617 .June 20, 2012 - .Via E -Mail Debbie Pedro, AICP Planning Director Town of Los Altos Hills 20379 Fremont Road_ - Los Altos Hills, CA 94022 Cynthia Richardson -Planner Town of Los Altos Hills 20379 Fremont Road Los Altos Hills,' CA 94022 .Attachment 12 Orange County Rancho Santa Fe San Diego San Francisco Washington, DC EMAIL ADDRESS sa*lnson®mckennalong.com Re:. Wadhwani Property Channel Realignment: Request for Minor Amendment of Site Development Permit, Variance,'and Conditions of Approval Dear Debbie and Cynthia: As. you know,. on March 14, 2012, the City Council approved a Site Development :Permit ("Approved SDP") -for the Wadhwani properties that involved the realignment of a portionof the Barron Creek Channel and bridges and pathways.: the existing:Wadhwani parcel with the .two adjacent "Orchid" properties. For the. past few months, Eric Biland. and .other members of-the:Project Team have beendiscussingslight modifications in the Approvecd SDP. This letter makes formal application_for the minor amendment �of the Site Development Permit ("Proposed Minor Amendment'll as follows (as further illustrated, in the revised plans being submitted by Eric Biland): - Proposedchannel relocation will be moved 16.5` feet to the east, to an alignment closer to the existing channel alignment; - The existing fence on the Wadhwani property was authorized in, the. Approved SDP to be relocated 15, feet from the revised top of bank -on the east side of the relocated :channel. The Proposed Minor Amendment -would authorize .the existing fence on the east side of the channel to be relocated .to within 15 feet.of the .new east top of bank. Although the 301339103.1 Debbie Pedro, A1CP Cynthia Richardson June 20, 2012 Page 2 new fence location would differ from the Approved SDP, the Proposed . Minor Amendment would maintain the same 15 foot distance of the relocated fence from the east top of bank as provided for in the Approved SDP. - With the Proposed Minor Amendment, the Site Development Permit would continue to provide for one driveway bridge and three 8 foot wide Garden Crossing bridges across the relocated channel, and associated 8 foot wide pathways, connecting the main Wadhwani parcel (26170 Fremont) with the two "Orchid" properties at 26238 Fremont ("Red Orchid") and 26240 Fremont ("Blue Orchid"). However, under the Proposed Minor Amendment, because the channel would be relocated to the east of the location in the Approved SDP, the proposed bridges would also be relocated about 16.5 feet to the east of the locations shown in the Approved SDP. -With the Proposed Minor Amendment, the length of each of the three Garden Crossing bridges would be increased slightly to about 24.5 feet. The overall cumulative length of the pathways and bridges within the 30 feet setback zone on either side of the Wadhwani/Orchid properties property line would remain the same. -At the request of Town Staff, the existing sanitary sewer line that runs just east of the revised location of the channel re -alignment would be replaced with a line at the same location using materials as approved by the Town, since over 50% of the line -would otherwise require modification. - Because of the change in the proposed channel alignment, the location of the Garden Crossing bridges and the configuration of bridges and pathways would be modified. Therefore, at the direction of Town staff, the Applicant is also seeking a minor amendment of the approved Garden Crossing bridges and pathways variance. The change to the location of the bridges and pathways necessitates very minor changes in the variance findings that were adopted by the City Council. These proposed changes in the variance findings are set forth in Attachment A,.with both the proposed new text of the findings and a comparison with the language of the previously -approved variance findings. The slight revision in the location and configuration of the Garden Crossing bridges and pathways would not change the substance of any of the adopted variance findings. (Note, the slight shift in the new channel location also changes the location of the driveway bridge slightly, but that bridge does not require a variance.) - Subsequent to the approval of the Approved SDP in March, the Applicant realized that a few of the conditions of approval were ambiguous and did not clearly reflect the intent of the Applicant and Town staff. Therefore, in conjunction with the amendment of the Site Development Permit, Applicant is also requesting revision of the following conditions of approval: 301339103.1 Debbie Pedro, AICP Cynthia Richardson June 20, 2012 Page 3 -_Planning Condition 3 - Planning Condition 7 - Planning Condition 14 -Engineering-Condition 25 These proposed clarifications are detailed in Attachment B, again with both the proposed new conditions language and a comparison with the previously -approved conditions. Please contact me if you haveany questions about the proposed Minor Amendments to the Approved SDP, Approved Variance, and Conditions of Approval.. Very truly yours, to Atkinson Attorney for Applicant Romesh Wadhwani ESAraz . Attachments 301339103.1 PROPOSED UPDATED FINDINGS FOR APPROVAL OF A VARIANCE FOR PATH AND BRIDGE ENCROACHMENTS WITHIN THE PROPERTY LINE SETBACKS LANDS OF WADHWANI, RED ORCHID AND BLUE ORCHID 26170, 26238, 26240 W. FREMONT ROAD Background In connection with the inter -related Site Development Permits for re -aligning Barron Creek on portions ofParce1175-35-002 ("Red Orchid"), 175-35-014 ("Blue Orchid") and 175-35-036 ("Main ParceP), the Applicant is proposing to construct four bridges over the proposed realigned channel of Barron Creek. Starting from the north, closest to Fremont Road, the Driveway Bridge is part of a common driveway with the adjacent Red Orchid property. Although this first bridge and associated driveway are within the property line setbacks of the Main Parcel and Red Orchid, they are permitted by Town Code as part of a common driveway. The remaining three proposed bridges are garden crossings intended to provide access from the Main Parcel to the central portions of the Red Orchid and Blue Orchid properties. Each bridge is proposed to be eight feet wide and would be connected to the Main Parcel property line by pathways of the same 8 foot width, pathways of the same width on the Main Parcel would then connect to the existing perimeter walkway on the Main Parcel. On March 14, 2012, the City Council approved a variance for the construction of three garden crossing bridges and associated pathways, to connect the Main Parcel with the central areas of the "Orchid" parcels. Applicant is now proposing to readjust the reconstructed drainage channel to be approximately 16.5 feet closer to the Main Parcel property line. Because the channel is moving 16.5 feet, the garden crossing bridges and pathways on the Orchid parcels are being reconfigured slightly. Therefore, the description of the bridges and pathways within the setback is being modified slightly. No significant changes are required for the variance findings. Garden Crossing #1 is located within the mandated property line setback from the Main Parcel propertyline. (It is approximately 4 feet at its closest point to the common property line between the Red Orchid and Main. Parcel.) The eight foot wide pathway from the east end of the bridge to the existing pathway on the Main Parcel is also within the 30 foot property line setback area. At the west end of the bridge, 2 feet of pathway is within the setback area. Garden Crossing #2 is located within the property line setback area from the Main Parcel property line. The pathway connecting to the Main Parcel is also within the 30 foot setback area of both the Blue Orchid and Main Parcel properties. In addition to the bridge itself, 4 feet of pathway on the east end and 2 feet on the west end is within the setback area. Garden Crossing #3 is located within the setback area of the Blue Orchid property where it adjoins the Main Parcel. The path from the eastern end of the bridge to the perimeter walkway on the Main 301339317.2 1 Parcel is located in the setback areas of both the Blue Orchid and Main Parcels. In addition, 2 feet of pathway at the west end of the bridge is within the setback area. The Code permits "walkways" within the property line setback areas. Walkways are defined as being four feet wide. Thus, the presence of bridges or walkways up to four feet wide within the setback areas is allowed by the Code. However, a variance is necessary for any bridge or pathway located in the property line setback area with a width greater than four feet. In summary, Applicant is seeking variances with respect to the following: - Garden Crossing #1 - 24.5 foot length of Garden Crossing # 1 bridge, four feet width beyond authorized four feet -Pathway from eastern end of Garden Crossing bridge to Main Parcel property line (approximately 4 feet in length) for four feet of width beyond authorized four feet, and 2 feet of pathway at western end of bridge - 30 foot pathway from property line to existing Main Parcel perimeter path, for width beyond four feet - Garden Crossing #2 - 24.5 foot length of Garden Crossing # 2 bridge, to extent exceeds four foot width - 4 foot Pathway from east end of bridge to Main Parcel property line, and 2 feet of pathway at western end of bridge to extent exceeds allowed 4 foot width - 30 foot Pathway from Blue Orchid property line to existing Main Parcel perimeter path, to extent exceeds allowed four foot width - Garden Crossing #3 - 24.5 foot Garden Crossing #3 bridge, four width beyond allowed four feet - 4 feet of pathway from bridge to Main Parcel property line, and 2 feet ofpathway at western end of bridge, four foot width beyond allowed four foot width - 27 foot pathway on Main Parcel from property line to existing perimeter path, four foot of width in excess of generally allowed four foot "walkway" width. The purpose of the variance(s) is to allow the bridges and connecting walkways (to extent they are located in property line setback zones) to be built to a width of eight feet as opposed to the.makimum width of four feet otherwise allowed under Planning staff's interpretation of the Town's Municipal Code. The requested additional width is necessary to (1) allow the bridges and connecting paths to be utilized by landscaping (e.g., mowers, etc.) and other small maintenance vehicles to move freely 3013393I72 2 between the two "Orchid" properties and the Main Parcel, (2) provide more convenient pedestrian access between the Main Parcel and the Red and Blue Orchid properties. . The following findings support approval of a variance for the additional width of the bridges and pathways. 1. Because of exceptional and extraordinary circumstances applicable to the subjectproperty, including size, shape, topography, location or surroundings, the strict application ofthe provisions of this Title is found to deprive such property of privileges enjoyed by other properties in the vicinity and under identical zoning classification; The three properties which are the subject of this variance request are currently in common ownership. The Main Parcel was developed approximately eleven years ago with a large home on the center of the lot and a pool and gardens at the south end. In 2011, the two parcels to the immediate west of the Main Parcel (Red Orchid and Blue Orchid) were purchased by entities controlled by the owner of the Main Parcel. Thus, all three parcels are in common beneficial ownership. The "Orchid" properties were each occupied by undistinguished homes built in the early 1950's, which have been demolished. The Owner currently intends to develop each of the Orchid parcels with a house to be used by persons visiting the Owner. No plans have been prepared or submitted for the use or development of the "Orchid" properties; the current Site Development and Variance Applications" do not propose any development beyond the west end of the three proposed garden crossing pathways. Currently, the area near the western boundary of Main Parcel is occupied by a man-made channel for Barron Creek and its associated channel easement. This channel effectively limits any pedestrian or vehicular access from the Orchid parcels to the Main Parcel. The Site Development Permit application proposes to realign the existing Barron Creek channel approximately 24 feet to the west of its current position, onto the eastern portion of the Orchid parcels. The realignment is intended to improve the flow characteristics of the channel and reduce the existing flood extents, due to the channel's current configuration. Also, for various reasons the existing channel is severely degraded, and the new channel will provide substantially greater biological value. Although the stream channel is proposed to be relocated, the relocation will not change the fact that the stream channel will remain as a barrier to access between the Main Parcel and the developable areas of the Orchid properties. The presence of a stream channel dividing the Main Parcel from the developable areas of the adjacent Orchid parcels is an exceptional and extraordinary circumstance not generally applicable to other properties in the vicinity. Only a small percentage of the properties in the Town are affected by an open stream channel which prevents access between adjacent properties or portions of the same parcel. Immediately upstream and downstream from the Properties, Barron Creek flows in culverts and does not present a barrier to movement between and within parcels. The vast majority of the properties in the Town are not affected by an open stream channel that prevents access by small landscaping or maintenance vehicles between differentportions of a parcel or between adjacent parcels. For most parcels, small landscaping or maintenance vehicles may access the full area of a parcel or pass freely from one adjacent parcel to another (subject obviously 301339317.2 3 to authorization from parcels in question.) The presence of an open stream corridor separating the Orchid parcels into mutually inaccessible portions and preventing access between the Main Parcel and developable areas of the otherwise adjacent Orchid parcels is an exceptional circumstance which does not affect the vast majority of parcels in the vicinity of these Properties. Strict compliance with the four foot width limitation for walkways and bridges would eliminate the ability to build a bridge across the stream corridor that would be wide enough to allow passage for typically -sized landscaping vehicles or small construction/maintenance vehicles. Although the Project will provide a driveway bridge over the channel near Fremont Road, this driveway bridge would provide awkward.and inconvenient -access for landscaping and maintenance -vehicles needing to pass from one parcel to another. Multiple bridges are necessary because the Main Parcel is divided into various areas and gates and other constraints make it difficult to move- larger landscaping and maintenance equipment from one area of the Main Parcel to others. While in the abstract a single 8 foot garden crossing bridge could provide maintenance and landscaping vehicle access across the drainage channel, providing multiple bridges accessible to landscaping/maintenance vehicles minimizes the need for such vehicles to make long traverses near the banks on the east side of the relocated creek channel. To protect such drainage channels, the Town generally requires a 25 foot setback from the top of the creek bank. This typical 25 foot wide stream protection area extends beyond the Main Parcel property line. A limitation to one garden crossing bridge would increase the need and frequency of landscaping and maintenance vehicles to travel through this setback area to reach other sections more distant from the bridge, increasing the potential for landscape and habitat disruption, soil disturbance and erosion/siltation in this sensitive area near the channel. Providing three bridges as proposed minimizes the need for landscape and maintenance vehicles to pass back and forth in this sensitive area along the creek. 2. Upon the granting of the variance, the intent and purpose of the applicable sections of the Zoning Ordinance will still be served and the recipient of the variance will not be granted special privileges not enjoyed by other surroundingproperty owners. The apparent purpose of the properly line setback is to prevent or minimize structures near the boundary of one property from having a negative impact on an adjacent property. Under the circumstances of these proposed variances, the variances are compatible with this purpose. The properties for which the variances are requested are under common ownership. Thus, the somewhat wider pathways and bridges within the setback areas will not have any visual or other impact on the adjacent owners. Because the Main Parcel and Orchid properties are not being merged, itis possible that at some point in the future the Main Parcel and the Orchid properties will return to separate ownership. However, any person considering the purchase of any of the parcels after the proposed Garden Crossing bridges and pathways are built will be aware of the bridges and pathways in the setback areas. If the bridges/walkways four feet wider than typically allowed by Code are objectionable, a potential new owner can (1) chose to not purchase the property in question; (2) remove/modify pathways or bridges in the setback areas or bargain for their removal in connection with the purchase of such property (subject to the then -applicable rules of the Town and any other agency with regulatory authority over the drainage channel). Thus, with the proposed variances no property owner will be involuntarily subjected to construction in the setback area which is objectionable. 3013393172 4 In addition, the rules of the Town and agencies regulating the new channel will require that the channel area be heavily vegetated, further minimizing any visual impact of the bridges and pathways on one property to any adjacent owner. Granting of the variance will not grant any special privilege to the Applicant. As noted above, the vast majority of the surrounding property owners do not have open stream channels or drainage ditches cutting through their properties and thus landscaping and maintenance vehicles are free to access any area of their properties, or to cross from one adjacent property to another, without the necessity of using any bridge. Thus, providing the three 8 foot wide garden crossings only provides the Applicant some approximation of the ability most land owners have to freely move such equipment around their properties. Being able to move such equipment within property and among adjacent properties is in no sense a "special privilege." Barron Creek does traverse several properties immediately upstream and downstream of the subject properties.. However, in those properties the creek runs in underground culverts. Both pedestrians and small equipment are free to cross the path of the creek alignment on those properties without the need for any bridge or the construction of a bridge or path limited to a 4 foot width. Again, the variance would grant no "special privilege" as compared to those adjacent properties in which Barron Creek runs in culvert and therefore does not raise access issues. Finally, the applicant has offered to place an irrevocable deed restriction on the properties that would require that when any one of the properties are sold with the result of separate ownership of the Main Parcel and Orchid Parcels, the additional width of the bridges and paths will be removed by the applicant or its successor on the affected properties,and returned to landscaped areas. 3. The granting of'such variance will not be materially detrimental to the public welfare or injurious to the property, improvements or uses within the immediate vicinity and within the same zoning district. The bridge and pathways which are subject to these variance(s) are located so as to be essentially invisible from the adjacent public roadways. The bridges will be located so as to span the channels and be of height as to not impair the hydrologic capacity of the stream channel. The additional width (eight feet vs four feet) of the bridge and walkway will not have any significant environmental impacts. The project engineer, landscape engineer and the environmental biologist all conclude that the bridges will not have a significant effect on the environment notwithstanding the shading that will occur under the bridges. The additional'riparian area that will be shaded by the bridges will be compensated for in the overall revegetation plan. The overall improvement of the biologic -habitat within the creek channel and the selection of appropriate plantings for the areas under the bridge will result in a less than significant biologic impact. Because of their location near the interior property lines of the Main Parcel and the Orchid parcels, the somewhat wider bridges and walkways will not impact or be readily visible from any other nearby properties under different ownership. No adjacent parcel not under common ownership would have a close or direct view to the two northern- most garden crossings. While it is possible that the southern -most garden bridge (Crossing #3) could be visible from the property to the immediate south, neither this bridge or nor its connecting paths would be in or near the setback area with that adjacent residence, and under the Code it would be possible to build other structures in the Blue Orchid property that would be much closer and more visible to the property to the south than 301339317.2 5 the small bridge and pathway proposed under the variance. In any event, the visual impact of an 8 foot wide bridge vs the Code authorized four foot wide bridge would be insignificant. 4. The variance will not authorize a use or activity which is not otherwise expressly authorized by the Zoning District regulations governing the parcel of property. Paths and bridges are authorized uses within setbacks in the R -A zoning district. The increased width will allow small maintenance vehicles to move freely between the properties and will provide more convenient pedestrian access between the Wadhwani property and the Red and Blue Orchid properties. The variances requested do not involve any change to the "use" of any of the three properties in question. 'The bridges and pathways are consistent with and accessory to the continued planned residential use of all three parcels. The Code would permit the construction of three garden crossing bridges, and the walkways connecting those bridges to existing pathways on the Main Parcel. The additional four feet of width for each of those bridges/walkways does not change the "use" but merely makes it more convenient to move landscaping and small construction vehicles within and between the Orchid parcels and the Main Parcel. 301339317.2 PROPOSED LIPDAT .D FINDIN S FOR APPROVAL OF A VARIANCE . _ - PATH AND BRIDGE ENCROACHMENTS WITHIN THE PROPERTY LINE SETBACKS -- LANDS OF WADHWANI, RED ORCHID AND BLUE ORCHID 26170,-26238; 26240 W..FREMONT ROAD Background In connection with the interrelated Site .Development Permits for re -aligning -Barron Creek on portions of, Parcel 175-35-002 ("Red Orchid") 175-35-014 ("Blue Orchid") and 175=35-036 ("Main Parcel"), the Applicant. is proposing 'to construct four bridges over the proposed realigned channel of Barron Creek., Starting from the: north, closest to Fremont .Road, .the Driveway' Bridge is part of a common driveway with the "adjacent Red .`Orchid. property. Although this. first. bridge and" .associated driveway are within the property ,line setbacks of the Main Parcel and Red. Orchid, they are permitted by Town Code as part of a'common driveway. The"remaining.three proposed -bridges are garden crossings intended to provide-accessfiom the Main Parcel to the -central portions of the Red Orchid and. Blue Orchid propertied �): Each bridge _is proposed: to be. eight feet wide and would be connected_ to the- Main Parcel.. property line by. pathways of the same 8. foot, width; pathways of the _same width on the " Main Parcel would°then connect to the existing perimeter walkway on the Main -Parcel. Twp e4gt a -a of Garden Crossing #1 is located -within the mandated property line setback from the -Main. Parcel "property- line.. (It is approximately2341 feet at its closest point to the common property line -between the Red Orchid and Main•Parcel.) The eight.foot wide pathway from the east end of the bridge to -the existing -pathway on the Main Parcel is also within the 30" foot property line -setback area. Arthew _c nd of h bridee_ 2� -feet of a hw y is within the setback . Garden Crossing #2 is located within -the property line setback area-e€fmm the Bye-ArehidXaiL_ Eifel property. The pathway connecting to the Main Parcel is also within the 30 .foot. setback area of both the Blue Orchid and Main Parcel properties. I. addition to the hddggitself. 4 feet of a hwav on the as ..ndand' 2-fedt 2-fedon h -west nd is 3yi hin- thasetback area. €Garden Crossing #3, tho oktf,�lieh r , cut 11.5 .F Q is located within the setback area of the Blue Orchid property where it adjoins the Main Parcel. The.Femainop b r ge-length-e�ttslde-thepr-epeft �etba ea—The-path, from the eastern end. of the bridge. to- the perimeter walkway on the Main Parcel is located in the setback areas of both the - Blue Orchid. and Main Parcels. Tn addition_ 2 feet ofatn hwav at the west end of the bridgQ is within the sethack area. The Code_permits."walkways" within the property line setback areas. Walkways are defined as —being-four:feet- wide:—Thus, the -presence -of. -bridges -or walkways -up -to -four -feet wide within -the--= setback- areas is allowed . by the Code. However, a: variance is necessary for any bridge or pathway located -in- the propertyline setback area with a width greater than four feet. Li summary, Applicant is seeking variances with -respect to the following: - Garden Crossing #1 24.foot length of Garden Crossing #47 h� four feet width beyond authorized four feet Pathway from. eastern end: of Garden Crossing. bridge to. Main Parcel property - line (approximately -2944 feet in length) for four feet of width beyond authorized four feet -and 2 feet of pathway at westgrn end' of. bridgg - 30: -foot pathway from property line to:existing Main Parcel perimeter path, for . .width beyond four feet - Garden Crossing #2 - 22=, foot lent -nth of garden Crossin # 2 bridge, to extent exceeds four foot width -''foot Pathway from:east end of bridge to Main Parcel property line., and 2 f of of pa hwy at'western end of bridgg to extent exceeds allowed 4 footwidth . '30 foot Pathway from Blue _Orchid 'property line. to existing Main :Parcel perimeter path,:to extent exceeds allowed four foot width - Garden Crossing #3 2 _ Eastern Garden Crossing JLbridge #3 Rue Qr-e;:a PEepe3F), four width beyond allowed four feet pathway from hddae to Main Parcel property line,.and2 feet -of piffiwijaf western end of bridge: four foot width beyond allowed four foot width (Blue Gieh IR - 27 foot -pathway on Main Parcel from property line to existing. perimeter path, "fourffoot of width in excess of generally allowed four foot. "walkway" width. The purpose of the variance(s) is to allow -the bridges and connecting walkways (to: extent they. are located in property line setback zones) to be built to a width -of eight feet as opposed- 16 the -----------=--maxinnum=width-of-four-feet-otherwise-allowed-under-Planninga€s ff's-interpretation-of-theT-- -- Town's Municipal Code. The. requestedadditional width is necessary to (1) allow the'bridges and connecting paths,to-be utilized by landscaping (e.g., mowers,.etc.) and other small maintenance vehicles --to- move .freely betweenthe two "Orchid properties and the Main Parcel, (2) provide more convenient pedestrian access:between the Main.Parcel and the Red and Blue Orchid properties. The P6aaing GefnfrAssien, following findings ifi�support e€=proval M a variance for the additional width of the bridges and pathways. 1. Because of exceptional and extraordinary circumstances applicable to the, subject property, including size, shape, topography, location or surroundings, the strict application of the provisions of this Title is: found to deprive such property of privileges enjoyed by other properties*inthe vicinity and under identical.zoning classification; The 'three properties which are the subject of this variance request, are currently in common ownership. The Main Parcel'was developed approximately eleven years ago, with a large home onthe:center of the. -lot and -a pool and gardens at the south end. In.201.1, the two parcels.to the immediate west of the Main: Parcel (Red. Orchid and Blue Orchid) were purchased by entities controlled by the owner of 'the Main Parcel. Thus, all three parcels are in'.common beneficial ownership.' The "Orchid" properties were each occupied by undistinguished homes built in the early 19501's, which'have-been demolished. -The Owner currently intends to develop each of the Orchid .parcels with a house to be used ;by persons visiting the Qwner. No .plans have :been prepared or submitted Ior the use or development of .the "Orchid" properties; the current Site Development and Variance Applications do not propose any development beyond the west end of the three proposed garden crossing bridgespajbways. Currently, the area near the western -boundary of Main Parcel is occupied by a man-made channel for Barron Creek and its. associated channel easement. This channel effectively limits any, pedesirian or vehicular access from the Orchid parcels to the Main Parcel. The Site Development Permit _application proposes to realign the existing Barron Creek channel approximately 402,4 feettothe west of its current position, .onto the eastern portion of the Orchid parcels. -The realignment is intended to- 'improve the flow characteristics of the channel and " reduce the existing flood extents, due to the channel" :current configuration. Also, -for various reasons the existing channel is severely degraded,. and the new channel will provide substantially greater biological value. Although the stream channel is proposed to be relocated, the relocation will. not change. the fact that the stream channel will remain as .a barrier to access between the Main Parcel and the developable: areas of the Orchid properties: The presence of. a stream channel dividing the Main ;Parcel from the developable- areas of the adjacent.Orchid parcels is an exceptional and extraordinarycircumstance not -generally applicable to other properties -in the vicinity. Only a smallpercentage of . the properties in the Town -are affected by an open stream channel which prevents access between adjacent .properties :or portions of thesame- parcel. Immediately upstream and downstream from the: Properties, Barron Creek flows in culverts and does not present a barrier to movement between and within parcels. The vast majority of the properties- in the Town are not affected by an open stream channel that prevents access by small landscaping or maintenance vehicles between different portions of a parcel:or between adjacent parcels. For most :parcels ,- small landscaping or maintenance vehicles may access the full area of a parcel or pass freely'from one adjacent parcel to another (subject obviously -to authorization from parcels in question.) The presence -of an open stream corridor separating the .Orchid parcels into mutually inaccessible portions and preventing access between the -Main Parcel and developable areas of the otherwise adjacent Orchid parcels :is. an exceptional circumstance which does not affect the vast -majority of parcels in the vicinity of these" Properties. Strict compliance with the four foot. width limitation for walkways and bridges would eliminate the ability to build a bridge across the stream corridor that would be wide. enough, to. allow passage for typically -sized. landscaping vehicles or small construction/maintenance vehicles. Although the Project will provide a drivewayy bridge over -the channel near Fremont Road, this ' driveway bridge.: would provide awkward. and inconvenient access for" landscaping: and maintenance vehicles needing to pass from:one parcel to another. Multiple bridges are necessary because the Main Parcel is divided into various areas. and gates and other constraints make .it difficult to . move: larger landscaping and maintenance equipment from one -area of the: Main Parcel to others. While in the abstract a single:8 foot garden crossing bridge could provide maintenance. and landscaping vehicle access across the drainage channel; providing multiple bridges accessible to. landscaping/maintenance vehicles minimizes the need for such vehicles to make .long, traverses r near the banks on the east side of the relocated creek channel. To protect such'drainage channels, the Town generally requires a 25 foot setback. from the top of the creek bank. This X25 foot wide stream protection ffoaMA extends beyond the Main Parcel property line. A limitation to one garden crossing bridge would increase the need and frequency of landscaping and maintenance vehicles to travel through this setback area to.reach other sections more distant from the bridge, increasing the potential for landscape and habitat disruption, soil disturbance and erosion/siltation in this sensitive area near the channel. Providing -three bridges as proposed minimizes the need for landscape and maintenance vehicles to: pass back and forth in : this sensitive area along. the creek. 2. Upon the granting of the variance, the; intent. and purpose of the applicable sections of . the Zoning Ordinance will still be served and the recipient of the variance will not be granted special privileges not enjoyed by other surrounding property owners. The apparent purpose of the properly line. setback is. to prevent or minimize structures near. the boundary of one property from having a negative impact on an adjacent property._ Under the circumstances of these proposed variances, the'variances are compatible with this purpose. The properties for which the variances are requested .are under common ownership. Thus,the somewhat wider pathways and (periieus eft bridges within the setback areas will not have any visual or other impact -on -the adjacent owners. Because the Main Parcel and Orchid properties'are not being. merged, ifis that at some point In the future the Main Parcel and the Orchid properties will retuto separate ownership. However, any person considering the purchase of any of'the parcels after the proposed Garden. Crossing bridges and pathways are built will. be aware of the bridges and pathways in the setback areas. If the bridges/walkways four feet wider than typically allowed by Code are objectionable, a- potential new owner .can- (1) chose to not. purchase the property in question;. -(2) remove/modify pathways or, bridges in the setback areas or- bargain for. their removal in connection with the -purchase of such property (subject to- the .then -applicable rules -of the Town,and any other agency with regulatory authority over the drainage channel). Thus, with the proposed variances,no property owner will be involuntarily subjected to construction in the setback area which is objectionable._ In -addition, the rules of the Town and agencies regulating the new channel will require that the channel area be heavily vegetated,further minimizing any visual impact of the bridges and pathways on one property to, any adjacent owner. ,.a of the variance will not grant any special privilege to the Applicant. As noted .above, the "vast majority of the surrounding. property owners do not; have open stream channels 'or drainage ditches. cutting through their properties and- thus, landscaping and maintenance vehicles are free to access any area of their properties, or to cross from one adjacent property to another, without the necessity of using any bridge.. Thus, providing the three 8 foot wide garden crossings only provides the Applicant some approximation :of the ability most land owners: have to: freely :move such equipment around their properties. Being: able :to -move such equipment within, property and -among adjacent properties is in-no_:sense a "special privilege:" Barron Creek does. traverse: several :properties immediately upstream and downstream of the subject properties.. However, in those properties the creek runs in -underground culverts. Both pedestrians and. small . equipment are free to cross the path of the creek alignment on those properties without the need,for:'any bridge or the construction: of a bridge or ''path limited to a 4 foot width. Again,; the variance would grant no "special privilege" as compared to those adjacent properties in which:Barron Creek runs in culvert.and therefore does not raise access issues. Finally, the- applicant has offered to: place an irrevocable deed restriction on the. properties that would require that when any one of the properties -are sold with the result of separate ownership of. the Main Parcel, and Orchid.Pg=Is. the additional width of the bridges and.paths will be removed by the- applicant or its: successor, on the affected Properties -and returned to landscaped areas. 5' 3. The -granting of such variance will not be materially detrimental to the public welfare or injurious to the. property, improvements or uses within the immediate vicinity and within the same zoning district. The bridge and pathways which are subject: to these variances) are located so as to be essentially invisible from the adjacent -public. roadways. The bridges will be located so as to span the channels and be of height as to not impair -the hydrologic capacity of the stream channel. 'The additional width -(eight feet vs four feet) of the bridge and walkway .will not have any significant environmental impacts. The project engineer, landscape engineer and- the environmental biologist .all :conclude that the bridges will ' not have a significant effect on the environment notwithstanding the shading that will occur. under the bridges. The additional riparian area. that will. be shaded by the bridges = will, be. -compensated -for in the overall revegetation plan. The overall improvement of the biologic habitat within the creek channel and the selection of appropriate plantings for the areas. under. the bridge will result in a less than significant biologic - impact. , . Because of. their location near the interior property lines of the Main Parcel and the Orchid parcels, the somewhat wider bridges and walkways .will not impact or be readily visible from any other nearby properties- under different ownership. No adjacent parcel not under .common ownership -would Have a close or direct view to the two.°northern- most garden crossings. While it is: possible that the southern -most garden bridge (Crossing #3) .could be visible from the property to the immediate south, neither this bridge or nor its connecting paths would be in. or near_ the setback:, azea, with,that., adjacent residence,. and under. the. Code .it.mould. be.. possible to build other -structures in the Blue Orchid property that would be much closer and more visible to the .property to the south thanthe small bridge and pathway proposed under the variance. In any event, the visual impact of an 8 foot wide bridge vs the Code authorized four foot wide bridge would be insignificant. 4. The variance will not authorize a use or -activity which is not otherwise expressly authorized by the Zoning District regulations govern" ngthe parcel of property. Paths and bridges are authorized uses within setbacks in the R -A zoning district. The increased width will allow small maintenance vehicles. to move freely between the properties and will provide' more convenient pedestrian access between. the Wadhwam property and the Red .and BIue quested do not Orchid properties. The variances reinvolve any change to the "use" ofany- of the three properties in question.. ' The bridges and pathways are consistent with and, accessory to the continued.planned residential use`of all three parcels. The Code would ' permit the construction of three garden crossing bridges, and the walkways connecting those bridges to existing pathways on the Main Parcel: The additional four .feet of width for each of those bridges/walkways does not change. the "use" but merely makes it. more convenient. to move -landscaping and small construction vehicles within and between the Orchid parcels and'the Main Parcel. tania,� a93i� 6 Document comparison by Workshare Professional on Wednesday, June 20, 2012.1:47:62 PM >° �N n .�°r xPd4 - t vI.$•��''� y>~sw..'14 �� Document 1 ID interwovenSite://SSDENTERPRISE/SF/301339317/1 Descri tion #301339317vl<SF> - Recommended Findings ocument 2 ID . interwovenSite://SSDENTERPRISE/SF/301339317/2 Description 30133931.7v2<SF> - Recommended Findings Rendering set Ilf standard 7 N`h'�&-7 �9'.a �.."S1''. .'�e.z\ v �'6y� f 4y4fy,�r; Y � FYF ••a`qq��y,�� ion Count ��Tns 37 iM��nVP�t^ 31 Moved from . 0 Style change : - 0 Format change 0 . Format changed 0 Inserted cell E,S.� zY Deleted cell Moved cell';r Split/Merged cell Padding cell.' Count Insertions 37 Deletions 31 Moved from . 0 Moved to 0 Style change 0 . Format changed 0 Total changes 68 ATTACEMNT B 3. The Heritage Oak tree near the new driveway on the Red Orchid property shall not be removed. The driveway shall preserve this tree to the satisfaction of the Planning and Engineering Department. 7. Applicant shall prepare and record an irrevocable deed restriction on the three properties requiring that the additional widthbf the bridges and paths shall be removed by the applicant or its successor and the area returned to landscaping as specified in the approved landscape plan if the property that contains such bridge or path is conveyed to any person other than the applicant; applicant's family, and entities (including trusts, charitable trusts, or foundations) owned or controlled by applicant and applicant's family. However this requirement for bringing any bridges and pathways within property line set back areas into compliance with Code shall not apply if all three parcels are sold or transferred together to a person or entity, or if all three parcels are transferred to a new owner, member of a new owner's family, or entities (including trusts, charitable trusts, or foundations) owned or controlled by new owner and/or new owner's family. If due to a sale or transfer, one or more of the parcels comes into separate ownership, then any bridge(s) -or path(s) that are within the property line setback of any parcel(s) that are in separate ownership from any of the other parcels shall be brought into compliance, but no action is required with respect to bridges or pathways within the setbacks of properties that remain in common ownership. The deed shall be approved as to form by the City Attorney and City Engineer and the deed shall be recorded prior to the Certificate ofCompletion for this project. 14. The proposed fence on the east side of the relocated channel shall be set back in a manner that accommodates the intended function and value of the channel revegetation plan. This includes a minimum setback of 15 ft. from the top of bank of the realigned channel. No required replacement riparian trees shall be planted within 15 feet of the relocated fence on the east side of the new channel. Property owner may, plant trees for landscaping purposes between the channel and the relocated fence without maintaining a 15 foot setback from the fence. 25. The property owner shall dedicate a minimum 27' wide storm drain easement to the Town. The property owner shall provide legal description and plat exhibits that are prepared by a registered civil engineer or a licensed land surveyor and the Town shall prepare the dedication document. The dedication document, including the approved exhibits, shall be signed and notarized by the property owner and returned to the Town prior to start work. Concurrently with the recordation of the property owner's dedication of the storm drainage easement for the revised channel alignment, the Town shall record a document abandoning its easement over any portion of the existing storm drain easement that is not within the 27' wide easement for the realigned channel. 3013391772 3. The Heritage Oak tree "_:e :. __ _a sheet 3 e f 25 . by _ enie d o r the a to w t a the new drivewayon. the Red Orchid -property shall not be removed. The driveway shall �� preserve this tree to the satisfaction of the -Planning and Engineering Department. 7. -Applicant shall prepare and record an irrevocable deed restriction on the three properties requiringthat the -additional-width of the bridges -and. paths shall be removed:by the applicant or its successor and the area returned to landscaping as specified in; the approved- landscape plan if the property that contains such bridge or path is conveyed to any person other than the "applicant, applicant's family;' and entities (including trusts, charitable trusts, or foundations) owned" or controlled by applicant and applicant's " family. However lhis requirement, -for- hring�ng. aw bridges-andatn hways within �roer y line -set hack iireag into com liars e * ith od " shall not u • • .� •� • n•i • • •. •n i • -•.r. - •. W i • is reguiredd with respect to bridges �r a h = yc witbin the se ba .ks of properties that remain in common owriershin_ The deed shall- be approved:as to form by. the City Attorney and City Engineer and the deed shall be recorded, prior to the Certificate of Completion for this project. i 14. The proposed fence on the east_side of the relocated channel shall be set back_ in a manner that accommodates the intended function and value of the - channel revegetation plan. This includes. a minimum setback of 15 ft. from the c eae e e f.:yplanted iY�riwa loe�e er-1S.A. f -e estop of bank of the.realigne'd channel, No rennired renla 'men riparian fence withoid maintaining a 1:5 foot setbackAom the fence; 25,7he property owner shall dedicate a ;minimum; 27' wide storm drain :easement to the Town. The. -property owner. shall provide legal description and plat exhibits that are prepared by,a registered civil engineer or a licensed land: surveyor and the Town shall prepare the dedication document. The dedication document, including the approved exhibits, shall be signed and notarized by the property owner and returnedto the Town prior to start work.° Concurrently wi h Document comparison' by Workshare Professional on Wednesday, June 20, 20121:45.06 PM 71 2a ocument 1 ID interwovenSite://SSDENTERPRISE/SF/301339177/1 escription 3013391.77v1 <SF> - Wadhwani inserts Document 2 -ID interwovenSite://SSDENTERPRISE/SF/301339177/2 Description 301339177v2<SF> - Wadhwani inserts Rendering set Ilf standard - Count Insertions - A. a ,, -A Deletions 5: " Moved from Style change Moved to Format change Style change 0: . Format changed Inserted cell s,zAMI,"kv z �� Deleted cell— .. i Moved cell Split/Merged cell Padding cell [T tistics. - Count Insertions - 7 Deletions 5: " Moved from 0 Moved to 0 . Style change 0: . Format changed 0 Total changes 12.