Dividend wins its appeal, but returns to commission
Lawsuit is likely
By Nathan R. Huff
Following the Nina Court subdivision application could make anyone dizzy, and the latest appeal to town council was no exception. A frustrated and tired council granted Dividend Homes' appeal, but sent the application back to the planning commission for the second time.
Council members expressed fears that the matter was going to end up in court either way, before voting to have the applicant follow the same basic subdivision map, but create only three instead of four lots. Access to all three lots would be off Pinta Court.
The three-lot option was one of a number of proposals discussed at a council-ordered Aug. 24 study session between neighbors and the developer. Neighbors say, in letters and public testimony, that the developer is inflexible on the four lot plan. The developer states that neighbors' suggestions are either legally impossible, more damaging to the hillside or less in line with the surrounding neighborhood.
The council heard similar testimony on Sept. 18, with neighbors arguing their privacy and safety would be violated by the development and the developer stating that the subdivision meets all the town and state requirements. The statements, on both sides, are anything but new.
In the last several months the application has gone from the development review committee to the planning commission, been appealed to the town council, sent back to the planning commission, re-rejected by the commission, appealed once more to the council, remanded to a study session, returned to the council, and now sent back to the planning commission.
The proposal is solely a subdivision map, calling for the division of a former flag lot--a large, single lot with a long driveway--into four parcels similar in size to neighbors' lots. A new public street, which several neighbors say is too close to their back property lines, would run from Pinta Court into the subdivision.
Neighbors of the proposed development brought new faces to the Sept. 18 meeting to argue their case--a lawyer, a developer and a geotechnical engineer. The three argued, respectively, that the council could legally reject the application, the project needed a thorough, formal design to appease concerns, and a geological study of the effects of increased water on the hillside should be required.
"You can deny this application and be within your legal rights to do so," lawyer Jim McManus said. "The planning commission found, in rejecting it 5 to 0, that the map is not consistent with the town's General and Specific plans... You can end this right here if you choose."
A number of people with no specific connection to the project spoke at the meeting, including former Mayor Pat O'Laughlin. O'Laughlin urged the council not to award Dividend Homes by giving into its "sheer persistence and obstinancy."
Following an unsuccessful motion by Councilman Joe Pirzynski to outright deny the appeal, council members reluctantly formulated a motion to send the applicant back to planning. Councilman Randy Attaway, speaking to the neighbors, supported the motion with strong reservations. He reminded neighbors that several years ago, when a planned development (PD) application for five homes on the site was presented, neighbors fought it and it was decided that a standard subdivision would be the only way to develop the property. Now, he said, he was dismayed to hear neighbors once again calling for a PD application.
Attaway added that, given the potential litigation over the council's decision, he felt a need to protect the town and taxpayers' pocketbooks. "If we go with the developer, the neighborhood is going to sue us," Attaway said. "If we go with the neighborhood, the developer is going to sue us."
Councilman Jan Hutchins reversed his earlier position, supporting the neighbors and voting to send the application back to the commission.
Councilwoman Linda Lubeck retained her position that the proposal met all the town's requirements, as well as the more subjective guidelines in the new General Plan and the Hillside Specific Plan. She said she went back and read the bulk of both documents prior to the meeting.
"A standard subdivision, with [a public road], is more in keeping [with the General Plan] than what the neighbors want, which I think violates more sections of the General Plan," she said.
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Los Gatos, California Since 1881
