Santa Clara County Planning Commission signals intent to overturn denial of grading abatement for Coyote Valley nursery

The Santa Clara County Planning Commission on Nov. 20 signaled it will move to overturn a June decision by the Department of Planning and Development that denied a grading abatement application for 355 Kirby Avenue in Morgan Hill, a parcel adjacent to the Coyote Valley Nursery.

The commission voted 4–2 to “declare intent to grant the appeal and rescind the decision of the Department of Planning and Development to deny the grading abatement approval and return to the planning commission for final action,” Vice Chairperson O’Donoghue moved, with Commissioner Escobar seconding. Commissioners Belska, Escobar, Vice Chair O’Donoghue and Chair Mark Rausser voted in favor; Commissioners Cohen and Levy opposed.

The decision follows a two-hour public hearing during which county staff described a multi-year enforcement history and said compacted base rock deposited on the property constitutes development area under the Coyote Valley combining district and thus exceeds the area limits that apply there. “The department has determined that the compacted base rock spread throughout the property meets the current zoning ordinance definition of development area,” staff said, and staff’s report noted the material covers roughly nine acres and that the department could not make several required grading findings.

The applicant — represented by MH Engineering and land-use counsel Bart Heckman — disputed staff’s interpretation and argued the crushed base rock is a functional surface used by wholesale nurseries and should be treated as an agricultural platform in the county’s grading analysis. “That base rock is not stated in your code as a development area,” Heckman told the commission, adding that many commercial wholesale nurseries in the county use base rock for operational reasons.

Heckman and the owner described efforts to legalize or partially legalize the grading through a grading abatement approval; the owner said the operation needs base rock to operate in wet weather, describing forklifts, tractors and delivery trucks that require a firm driving surface. Applicant materials corrected earlier quantity estimates and stated the applicant now proposes to remove 1,592 cubic yards of base rock and retain 2,221 cubic yards on site.

County staff recounted the property’s enforcement timeline: an April 2019 investigation that found compacted base rock spread over multiple acres; a September 2020 court order directing the previous owner to abate the violations; sale of the parcel to the current owner in March 2021; a compliance agreement in August 2023 that acknowledged nonexempt grading without permits and set a timeline to abate; an abatement application deemed complete on April 10, 2025; and staff’s denial on June 9, 2025. Staff warned that if the commission overturns the department decision, the county would have to conduct CEQA analysis to consider environmental impacts in Coyote Valley, an area designated by the state as being of statewide importance.

Commissioners questioned whether a declaration to grant the appeal would effectively approve the base rock in perpetuity and explored tools the county could use to limit or condition any legalization, including recorded conditions or bonding to secure future removal. Staff and applicant counsel both said conditions or mitigation could be required; counsel suggested recording obligations or bonds to assure removal if the nursery use ceases.

By declaring intent to grant the appeal, the commission has directed staff to proceed with the next steps, which include CEQA review, drafting conditions of approval and returning the matter to the commission for final action. The department’s original denial and the compliance agreement remain part of the administrative record.