Planning Commission - Regular Meeting

I pledge allegiance to the flag of the United States of America, due to the authority for which it stands, one nation under God, indivisible, with liberty and justice for all.

Speakers will have three minutes to speak.

Thank you, chairman of the consent Congress of measured, uh, commissioner and glaciers.

Thank you, Chair. Just quickly, just in the spirit of trying to save paper, are we expecting a resubmittal of the, whatchamacallit, the plan sheets, or should we just keep the current ones?

I'm ready with a motion, but I saw Commissioner Glacius's hand pop up, so I'd be prepared to yield him if he had something you wanted to say before the motion.

Thank you, Commissioner Pine, Chair, if I may. I just point of clarity and procedural question. If we were to open this up for public forum now, and then members of the public were allowed to speak to give their opinion, the three minutes on this, wouldn't they then have another opportunity to give them another three minutes? And the exact same thing?

Totally understood. That's why, as just a point of clarification, I guess my concern is, and I want to, this is my own clarification and also for all of us, that if we had gone forward and then we're not just speaking on the continuance, but we're actually presenting or allowing people to speak on the noticing, would that prevent their ability to then speak in the future?

I'm still ready with the question. Yeah. To note, I think the reason we ran into meeting count issues with the one previous with the item previously is because it also had to go to heritage preservation, which chewed up and may have even got which chewed up a meeting, but which is not something you would expect to see on a regular basis. Anyway, I move which what I believe to be alternative a non-listed alternative, so-called alternative four, which is to continue the item until September 14th per staff recommendation.

Yeah, I don't see a point in trying to proceed with the item against everybody's recommendation. Thank you.

Likewise, I'd just like to make a note to staff that we make sure that they know to have the sign up before the September 14th meeting so we don't have a repeat of that. But yes, I see no objection to continuing to September 14th. Thank you.

Thank you, Chair. Thank you for the presentation. First thing, you said it's 100.5 inches in um diameter did you mean to say circumference yes yeah um it's a big tree but it's not eight feet across right so okay um and if i understand the if we were to approve the appeal of the recommended conditions of approval there are it would require three replacement trees

So there's some flexibility. How big is 15 gallons?

So what is 15 gallons measuring is that the pot that you buy it in. Yes, yes. Okay. All right. So it's the size of three water jugs. Okay. And if I understand correctly of fruit trees would not qualify as replacements. No fruit trees and palm trees do not count. Okay. All right. I just want to make sure I was clear on that. Thank you. Commissioner pine.

Thank you chair, thank you staff for the presentation. So there was a previous application on the site back in 2011. Does staff have any clarity on to which of which if and obviously multiple are possible of the three findings it was able to make for the removal of the one tree back in 2011.

Okay. Thought it was worth asking. Thank you.

I might have missed it, but is there anything that shows how close the tree is to the foundation or if there's any water lines near there or power lines near the tree?

Okay, I'll let the applicant respond to that.

Thanks, Chair. Quick question. So regarding the code 19.94.030, under section C, number 8, the other justification can be any other information the director of community development finds pertinent to the application. Can you give some examples of what that might be?

Okay, that one, I appreciate that. I'm a little bit nervous just about that because to me, it's a bit of a catch-all where as I interpret it, it would allow the city to find something that justifies, but not necessarily the resident. And if we were to have some form of precedent of specific examples that have been used, that would help me better understand a consistent interpretation of that. Thank you.

Thank you, Chair. A couple questions for the applicant. In the record, we have that there was a previous tree, tree removal permit action on this property in 2011. And the application to approve this removal of this tree specifically was denied. Can you speak to what has changed since 2011?

We had a decision on this site in 2011 that was that was to deny removal of the tree. We are being asked today in 2026 to essentially over to make the opposite decision. Basically, what are the factors we should consider in saying, and respect i i would like to respect the 2011 president but i also want to be open to saying hi that was 15 years ago so basically what i'm looking at looking for is what's like what fat what has changed in the past 15 years that would have led to an alteration in the factors to approve this so one thing that i did mention on that we had those crazy storms a couple

Thank you. And the other question I had is there's been discussion about native species versus non-native species. Would the trees you're proposing to replace this with be native species?

Yeah, I was just asking because the list of recommended trees from the city includes a large number of non-native species. This is something I have been complaining about for several years.

Vice Chair Davis. uh thank you chair um thank you mr rapio um i i live fairly close to here so i came um I went by your property yesterday and I noticed that you have a large section where it looked like you're growing wildflowers. It was well delineated. I guess my question is then, if you're looking to grow produce, to grow food there, Is there something that allows you to grow wildflowers right there, but not, uh, whatever vegetables you want to grow?

Okay, okay, understood. This is my only question. Thank you.

Thank you. Um, I have a question about, um, about the benefits of that tree had given to you in last few years, because I'm just thinking because it's in the direction where sun goes Southwest. So your bedroom is probably very, very cool in the summertime because the shades of the tree, have you noticed that or.

okay because i i feel that i mean i have um kind of similar direction my houses but it's not the same cedar trees they are a little bit a little bit um not that tall but it does make uh lots of difference in time when in summer but you don't have windows on that side too so you don't get to see the trees too because you haven't really i i feel that if you i know this is it's nothing to do with just the question that if you had a window and if you're enjoying the tree and maybe maybe you could you could have a different relationship with the tree but anyway that's uh that's not the question i w

you chair um i had a couple clarifying questions for uh staff and the um arborist um first was for section c uh the tree is basically sound condition but or 60 owner's ability to enjoy the reasonable use my question there is at what point is i mean we can see the pictures and when i look online i see that uh the tree roots grow on average around 12 inches deep and they they steal resources and water and And they, the needles are acidic and which prevents other things from growing. At what point would that be crossing the threshold of like reasonable use?

I think I really appreciate that answer. When I look at this particular situation, the way that I observe it is that the trees I mean, living in Sunnyvale, let me just say it differently. Living in Sunnyvale in my backyard, I can probably grow almost anything. In fact, I have to stop things from growing constantly. Like tomatoes take over, strawberries take over, peach tree that I thought was dead came back. Like our soil here is just incredible with what we can grow. So to see a space that has like... that's effectively barren around it that just seems very inconsistent with what I'm used to

so my only challenge with understanding it that way is the other ones are all about a reason to remove and if it's a second story house that screening would be beneficial and that would be a reason to keep versus versus a reason to remove and so for instance topography of the land um on action on water retention approximate age of the tree relative to its lifespan the potential effect of removal and soil erosion so there's all reasons justifications to remove so this is that's why when I see the current future visual screening is it that this doesn't have the potential to screen. That's why I'

I have a question for staff actually. If the client wants to have an ADU there, then the situation changes, correct?

Yes, so exactly. So that's compared to like growing fruit trees compared to the like our agriculture land or growing some wheat or something. And we can't probably do that in the front yard, growing like grain or something.

Before you close the public hearing, I see Commissioner Glacius has his hand up.

THANK YOU CHAIR THIS ISN'T A MOTION THIS IS PART OF MY DISCUSSION BUT ACTUALLY ONE POINT OF CLARIFICATION I HAVE THAT COMMISSIONER PINE ACTUALLY STIRRED WAS SO THIS HAS BEEN BROUGHT BEFORE FOR A DECISION IF WE WERE TO VOTE ON TODAY WHAT WOULD HAPPEN IF WE WERE TO APPROVE IT WHAT WOULD BE WHAT WOULD BE THE NEXT STEPS FOR IT IT GOES FORWARD THEY CAN DO IT AND IF WE DENY IT WHAT'S NEXT STEP

I want to make sure that I understand procedurally. So if we say we're to deny it, what could the applicant do?

Okay. But it was before the, did you go to Planning Commission back in 2011? Or was that only just at the department level that it was? Do you know? yeah uh for the 2011 permit um the decision on denial was not appealed so it stayed with the staff level so so i guess my question is are we by voting on this again are we circumventing our own process because if we were to deny it today in order to come back in 10 years would that be something to be legitimately brought back in front of us and they could come back in 10 years and apply for the same thing i thought that it was but it was if there'

Thank you. Yeah, kind of further to that question. What is there an actual required cool down period between apple tree removal permits for a on a given tree?

position without making a motion quite yet to maybe stir some discussion. I do think that as I read the requirements to allow for a tree removal permit, there are elements that are flexible in there to me. I think that there's space for it to be interpreted either way. And in general, I think that when there is that level of flexibility, my inclination is to support the homeowner, in this instance, I love trees, Sunnyvale loves trees. And I think that I would be in a different, I have a different perspective if this was a native tree. I think I'd also have a different perspective if I didn't t

Yeah, just continuing the discussion. I live, I don't know, probably less than half a mile from the applicant. And I have protected trees on my property as well. My lot's actually one of the larger ones in the neighborhood, and yet it's less than half the size of this lot. And perhaps it's just my property, but all the trees in this neighborhood seem to be bullies. You can't grow anything under any of the trees that are prevalent in the neighborhood. I don't know if it's our particular soil, if it was the species that were chosen. I don't have this particular species in my yard. The three tree

So, um, I do I do a lot of yard work at my house. So a lot of empathy for when you're trying to do your yard and you want to have it easy to clean up and you know, you don't want to have leaves everywhere and stuff. I totally get that and understand with regards to pine needles because they are very acidic. So As a homeowner, some of us pay quite a bit in property tax. And I believe that we should be allowed to, if the situation arises and it's appropriate, to make adjustments to our property. The ironic thing is if the applicant, I think it was brought up by another commissioner, that if the

Yeah, I think I'm kind of torn, too. I remember that if the PG&E electrical wires go above the tree, then they cut your tree. And sometimes, because they have to keep coming back so much often, like some fast-growing trees, they even offer to completely cut your redwood. Not redwood, but Italian cypress. and it's like you they shared the cost with the homeowner and then they cut your tree so i am like i think if it's um utilities if it obstructs the utilities to provide the other neighbor neighbors then we allow them to cut the trees and we have a street trees which is helpful for the neighbor

was prepared to make a motion. I suspect the motion I have made is unlikely to pass, so I'm tempted to withhold it because I'm, but I will, because I feel like we've done a lot of discussing without a motion, I'd frankly prefer we actually discuss with a motion on the floor. So, I'm actually going to put my hand down, mostly because I think the motion I make does not have four votes at the moment. And I'll defer to somebody who would. Thank you.

Okay, I will move option excuse me alternative to grant appeal and approve the tree removal permit based on findings that the post removal meets one of the standards which i'll explain in a second and subject to recommended approval conditions of approval attachment three. So, for the particular. portion, I think it qualifies under section C, the tree is basically sound condition, but restricts the owner's ability to enjoy the reasonable use. And then subsection seven, the tree has outgrown its useful perfect landscape value due to its inappropriate species, size, and location relative to the

Thank you, Commissioner Pyne. So for the purpose of discussion, what's been presented to us is a tree that may at one point have been useful to the property, especially when we hear about when it was originally planted there and what the property was originally used for, that being in the 70s. Now I think that what's been clear to us is that it's inappropriate in the sense that it prevents other use of the property. What's curious is the tree if there were actually other trees on the property now underneath it they would almost certainly be impacted the inability to grow a fruit tree and then

um commissioner pine to your second sure uh i seconded for per mostly for discussion i was curious if someone was going to jump in with any friendly amendments on alternative three i did for on the conditions of approval given some comments from other commissioners but uh and i will say that i'd be amenable to supporting them however i'm actually not inclined to support this motion because i I am unable to make the finding under 19.94.060 because I think the words relative to the existing structures on the property have weight in that clause. And I will also note that in 20 and I think what's

What would that mean in this case? Because we are the final point of decision.

Okay. I was going to potentially suggest that, but I wanted to make sure it wouldn't break something horrific. Thank you.

by chair davis uh thank you chair um like commissioner pine i i just can't make the findings um so on item c um reasonable use or economic potential of the property whoever planted the tree knew what they were doing they put it in a spot where it's not going to impact the neighbors at all. The neighbor question is out of it. The property is so large, and it's facing the street. I can't squint hard enough to find that you can't reasonably enjoy the property. Everything that's been discussed that they want to do, there's adequate space on other parts of the property to do. saying that the tree h

I have a parliamentary inquiry on that actually. Okay, so a three to three vote is not an action. On a three to three voting motion does not carry. It is my understanding that it is in order following a motion that does not carry to make subsequent motions.

What I'm proposing is that we vote on motion. What I'm proposing, and I believe it would be in order, so correct me on this if I'm wrong, is we do actually vote on an actual alternative. And if it's clear that if a motion to take an alternative does not carry, I believe it would then be in order to vote. Since we have not passed a motion and the item would still be before us, we could then have another motion afterwards, that would be a motion to continue.

I'm suggesting, and again, I don't, and again, this is, I'm not even saying this is going to happen. Commissioners, Chair Cerrone has not raised his mic yet. Like I don't, I'm just, so maybe this just, so maybe there, and we haven't had, we have had commissioners not kind of have opinions, but not speak directly in motion. So I'm not even saying it's going to be a 3-3 vote, but like if, What I'm saying, like if when I, the course of action I'm saying is let's say this motion goes three, three. Okay. So if like, if it goes, okay, so there's three things that could happen. The motion goes, well,

The motion on the table is alternative two.

Well, we would not have made a final determination. We would have built on alternative two. We could still adopt a different alternative.

Or alternative four, which would be a continuance.

Sure. The point is, we don't have to tie ourselves into parliamentary knots trying to take this motion off the table if we're worried about it going 3-3.

Right. I'm just saying we don't get stuck. If there's three to three, we can still do something afterwards. If we can get something else that has more than three votes.

No, that's not what I'm trying to do. What I'm trying to do is say, if this goes 3-3, I want to move a continuance afterwards, is what I want to do. yeah you're looking to see yeah if there's a three three vote without making that a formal vote i do want to make that a formal vote i want to take the vote on the motion and if it passes it passes and if it fails two to four then we vote on then i'll move alternative one if it fails three three i want to move up i want to move a continuance

Right. But I'm saying we don't have to move on from this item after the first vote.

No, because, okay, I'll put, but I'll, I don't agree because if the alternative, if this was, let's say this failed 2-4, would it not be in order to, I think it would be clearly in order to move alternative one if this failed 2-4.

Is it not a failed vote under Sturgis? Is it not?

Okay. I would respectfully request that you cite the provision of Sturgis where it says this, because I disagree.

It is my understanding of general parliamentary law that a tie vote is considered to have failed on the tie. I would respectfully request a direct citation if I'm wrong about this. Because frankly, this is... I would be attempt, because frankly, I fairly strongly disagree. And if it's not a direct citation, I would be prepared to ask. Well, this isn't actually before the body yet, properly before us, because we haven't actually gotten to that point in the tree, but.

I apologize. I apologize to everybody. I thought this was going to be very straightforward.

Thank you. I'll go ahead and what I would ask all my commissioners to do before we vote is to go in your computer, if you have it, and go to 1365 Fisher Hawk Drive. Google Earth, Google Maps has generously taken three pictures over the last several years. This is in addition to the pictures that have been given to us already for this presentation. What you'll notice from 2019, 2020, 2022 is the picture from Google Maps of this property. In the front of it is abstract death. And it sounds like I'm being dramatic, but there is dirt with nothing in it. in all four times. So now I would ask you be

I agree. My point was only that it does not stop us from acting on further motions.

Yes, I, I agree with that. It's just my intention if this is 33 ways to offer a a continuance and I hope the continuance would not be deadlocked.

That's fine. The argument was that this was going to preclude further action. I would have. asked my colleagues to vote against, even if they thought, even if they were supportive in order to avoid that. But I don't think that's necessary. Thank you.

It's alternative to. which is grant the appeal and approve the tree removal permit based on finding that the proposed removal meets one of the standards in SMC 19.94.060 and subject to the recommended conditions of approval in attachment three and the particulars I was citing in section 19. dot 94.060 with section c um subsection seven which the tree has outgrown its useful landscape value to say in its inappropriate species size and location relative to the existing structure of the property so this motion would up hold the appeal and allow the tree to be removed correct

Thank you, Chair. Before I make an, I'm prepared to offer another motion, but I would actually, be prepared to yield to Commissioner Shukla because Commissioner Shukla, I'm not sure, I think you are the deciding vote on whether we have four votes to do something tonight. So I'd be interested to hear what you'd be interested in doing.

Oh, thank you. I was questioning both sides because I was, I was giving the applicant some ideas that they, if there is a, there is a PG&E is going, yes, you can cut or you feed, there is ADU, you can do it, but you can also have contained, you can have the hire the landscape architect and design around the tree. So I do, I want something like I would go with the staff if, because I don't have that much power to just grant, or I don't have even that many ideas to give, make a motion to go strongly to cut the tree. So I was in the middle and I think I would, I'm going, I do a, agree that the pr

Thank you. Okay. In that case, I am going to move alternative one, deny the appeal and uphold the decision of the director of community development to deny the true will parent based on the recommendings findings for denial and attachment to.

vice chair davis yeah i kind of regretfully seconded yeah thank you i think i've said all i have to say on this at this point uh likewise um this is one of these situations where your personal values conflict with the law and so we're up here to uphold the law um And yeah, so I urge my commissioners to vote for this motion. Thank you.

uh commissioner iglesias hey chair um i will not be supporting it um i i don't agree with the interpretation uh that we our hands are tied i do agree that uh that we are a quasi-judicial organization um but i do looking at the again at the code it is written in a way that is don't know if it's deliberately vague but i think it's probably the reason the reason the commission exists is for the exact purpose of the interpretation of something that's vague as this um and two the staff's point that when asking the question what qualifies as as reasonable like that that ultimately does come uh up to

Thank you, Chair. Thank you, staff, for the presentation. I just had one question, and it's that in the bonus, in the density bonus request letter on attachment five, there's 20 waivers listed in the staff report. We have 16 waivers. What's going on?

Okay. Honestly, the biggest reason I asked is I agree with the comment that Well, I'm not going to say before the public hearing that I agree with inherently that they were unnecessary. I will say that the waivers that I noticed that were in the letter that were not on the staff report were the ones where I was planning on asking the applicant to be very specific on how they physically precluded the development of residential sites. Because I actually thought most of the letter in attachment five was actually very, well put in that it very specifically stated how a lot of the waivers were nece

Okay. I ask this for every one of these. We got the letter, I think from the Housing Defense Fund, asserting that this is covered by the Housing Accountability Act, which means that we can only deny this if we can find safety or health concerns, which has a very high bar. I just want to confirm that that is true. Just for the public's sake, I know that it is.

Thank you, Chair. Just for mostly just for the record, waiver 16 pedestrian walkway. Is it that is it applicant's position that the The site constraints that would that don't provide space mean that if we added the drive walk I walkway next to the drive by we basically have to remove units because there's not enough space right now so we'd have to either make the units on economically smaller we just have to take some out entirely.

Yeah, no, this made complete sense to me. It just didn't, I think, explicitly say anywhere That that would reduce units. I just wanted to get that into the record. The. There's there's to be clear, I'm not arguing this in any way, shape or form. I think it's very straightforward. The other question I had, you mentioned improve native species. Could you elaborate on this? Because I'm looking at L dash 2 and I'm looking at your tree palette and I am not seeing the native species.

Okay. I'm just saying, I just, you know, I'm always here asking for more native species. I just, when I heard that, I just, I didn't see it in what we got. So I just... So I'm not going to try to hold up the project.

I didn't notice that there were eight deodorant cedars on the list of trees to be removed. Yeah. But yes, that's all I had. Thank you.

Yes, for the applicant. So we're doing 19 units per acre, right? And that's below our maximum zoning wise with the housing density bonus. You could have gotten more units. I understand that townhomes are what pencils out. So the question I have is, is there anything the city can do where we get more density? is there anything in that this in the city regulations in our zoning that's keeping you from going even denser because as we've said before we are in a housing crisis my house should not be worth what it is right um gosh I you know there's so many different things working against each othe

Vice Chair Davis. Thank you, Chair. I'm ready to make a motion. I move that we adopt alternative one. Find the project is exempt from CEQIP for AB130 and approve the use permit investing tentative map with the recommended findings in attachment two and subject to the recommended conditions of approval in attachment three.

It not being ordered, it not being ordered to third, consider my hand as to request to speak at the appropriate time.

Yeah, I mean, we all know what's happening here, right? This is a it's a housing project that follows the state laws and so on. It does take away some of our discretion. We need a lot. We need housing. This is a good project. So I encourage my fellow commissioners to vote for this motion. Thank you.

Thank you, Chair. Yeah, just in addition to what the Vice Chair said, I do appreciate the applicant for making the adjustment for the loading space. I think it's a great project. Thanks.

Yeah, thank you. I agree with what my fellow commissioners have said. I do appreciate the applicant's willingness to work with the city and not just go my way or the highway like we have seen other developers do. I do think it's a good project. I think it's I think will be an improvement to the neighborhood. We're not very far away from the site of this project of this project. I will actually flag the staff that we did not get an attachment that is the noticing radius for this project, which is something we usually get. which is because, and I think it's funny because I was going to pull it u

commissioner yeah i would be i'm i'm happy to see this project it's a good addition um especially in that location uh you have a lot of waivers but uh because the location is such that it wouldn't impact the quality of the life of the city so it's like kind of um I mean, even though we can't object them, but still, it's not going to depreciate the quality of life in that area, especially. So I think I appreciate all the little details you have taken care. And especially I heard in presentation that you'll be working with the native tribal people while doing excavations. So that we appreciate i

Uh. Would that cause any potential. Issues with noticing or anything if we don't have a fixed start time for the regular session. don't know the exact details i just know they want to start at six so it they will notice it to start at six i i mean i just know that when we notice things it typically says that like i also will say that i think there are a lot of times when people are showing up for the study session in there and then there are times when people are showing up for the public hearing and i think it would be a disservice to the public to say that we don't to not to give a non-fixed

Commissioner Iglesias. Really quick, thanks for the question. I do get a bit of grief from my employer when I leave at 5.30. So for me, I prefer it to be 7. Thank you.

Would this be just, I mean, are you doing this, would this be for like next term or just starting the median?

So when we don't have a study session, then it would start at 6. That's what it means, right? So if there's no study session, then our planning commission will start at 6. If there is a study session,

I like 7 a lot better. I have a lot of privilege with my schedule, so it doesn't really impact me. But I think about the public, other commissioners, potential future commissioners, 7 is just easier to make work when you have a job, right? And perhaps you're commuting or if you have, let's say, children that you need to cook dinner for. If it starts at 7, you can cook dinner and you know, hand it over to the spouse. Six o'clock, you're coming straight here from work. So thank you. Thanks.