Item 2.Desk Item with Attachment
PREPARED BY: ERIN WALTERS AND JOCELYN SHOOPMAN
Associate Planner and Associate Planner
110 E. Main Street Los Gatos, CA 95030 ● 408-354-6832
www.losgatosca.gov
MEETING DATE: 04/21/2022
ITEM: 2
DESK ITEM
TOWN OF LOS GATOS
HOUSING ELEMENT ADVISORY BOARD REPORT
DATE: April 21, 2022
TO: Housing Element Advisory Board
FROM: Joel Paulson, Community Development Director
SUBJECT: Review and Discussion of the Housing Element Site Inventory
REMARKS:
Attachment 9 contains public comments received after the completion of the Staff Report.
ATTACHMENTS:
Previously received with the April 21, 2022 Staff Report:
1. March 31, 2022, Housing Element Community Meeting Slides
2. Initial Draft Site Inventory
3. Results from the Balancing Act Tool Submittals
4. Results from the Housing Element Update Website Site Surveys
5. Individual Results from the Housing Element Update Website Site Surveys
6. Property Owner Interest Form
7. Board Member Comments
8. Public Comments Received by 11:00 a.m., Friday, April 15, 2022.
Received with this Desk Item Report:
9. Public Comments received between 11:01 a.m., Wednesday, April 20, 2022 and 11:00 a.m.,
Thursday, April 21, 2022
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From: Ramakrishnan, Erik
Sent: Wednesday, April 20, 2022 5:03 PM
To: Housing Element <HEUpdate@losgatosca.gov>
Cc: Faber, Andrew L.; Don Wimberly; Fred Faltersack; Arvin7399
Subject: Public Comment for April 21, 2022 HEAB Meeting
EXTERNAL SENDER
Dear Members of the Housing Element Advisory Board-
Please include the attached correspondence in the record for the April 21, 2022 board meeting.
Thank you,
Erik Ramakrishnan | Attorney
San Jose | Modesto | Merced
ATTACHMENT 9
Housing Element Advisory Board
April 20, 2022
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lower densities than planned for in the Housing Element. When this occurs, a local agency is
required to add sites to its inventory unless it has already produced excess units through other
means, such as under SB 9.
Second, the Town’s implementation of SB 9 is relevant to the Housing Element constraints
analysis. The site inventory is not the only component of the Housing Element. Government Code
Section 65583(a)(5) requires housing elements to address governmental constraints to increased
housing development, and Section 65583(c)(3) states that the housing element shall include
programs to address and remove such constraints. The Town’s SB 9 ordinance imposes
unreasonable and unnecessary constraints on housing production, and Section 65583 places a
mandatory duty on the Town to eliminate those constraints.
As part of your deliberation at the April 21, 2022 meeting, I encourage you to direct staff
to propose amendments to the Town’s SB 9 ordinance as a strategy to meet Sixth Cycle RHNA
targets.
Very Truly Yours,
BERLINER COHEN, LLP
ERIK RAMAKRISHNAN
Attachment
Los Gatos Mayor & Town Council
April 4, 2022
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now responded acknowledging receipt of our letter and stating that they are analyzing our
concerns.
Two developments occurred in March at the state level that support our clients’ position
with respect to the Ordinance. First, on March 15, 2022, DOJ sent a Notice of Violation to the
City of Pasadena informing the city that the procedure by which the city council adopted an
ordinance implementing SB 9 (i.e., by extending an existing urgency ordinance) violated state law,
and that the city’s attempts through its ordinance to thwart the implementation of SB 9 constituted
an “abuse of discretion” and a violation of the Housing Crisis Act of 2019 (“SB 330”).1 The letter
is instructive here with respect to the Town’s Ordinance, particularly because both the Town’s and
Pasadena’s ordinances were adopted as extensions of existing urgency ordinances. More recently,
on or about March 25, 2022, HCD issued its “SB 9 Fact Sheet” to clarify SB 9 for local agencies.2
The fact sheet contains language that makes clear that the Town’s failure to apply SB 9 in the HR
zoning district violates SB 9, and that attempts to apply vastly different zoning rules to SB 9
projects than to other projects in single-family residential districts violate SB 330.
The primary purpose of this letter is to discuss the DOJ’s letter to Pasadena and HCD’s
fact sheet. But as an initial matter, and apart from legal considerations, we wish to point out that
the Ordinance poses real practical difficulties for our clients, who are all Los Gatos residents,
voters, and taxpayers. All our clients live in the HR zoning district and are therefore prevented by
the Ordinance from taking advantage of SB 9. Some of our clients have existing building pads
and therefore can comply with the Ordinance’s strict grading limitations, but for those clients
without existing building pads, the grading limitations foreclose application of SB 9. At least one
of our clients with an existing primary dwelling and ADU would like to do an Urban Lot Split
under SB 9 so that both dwellings sit on separate lots. Then the client would sell the lot with the
existing primary dwelling and use the proceeds to finance construction of a new home on the parcel
with the existing ADU. This would allow the client to downsize slightly in his retirement, but the
Town’s requirement that the first unit constructed on a lot pursuant to SB 9 be limited to 1,200
square feet is overly restrictive and is preventing our client from achieving his goals.
Accordingly, we ask the Town Council to reconsider the Ordinance, which the Town
should do because the manner in which the Ordinance was adopted violated state law, provisions
of the Ordinance violate SB 9 and SB 330, and the Town should eliminate unnecessary and illegal
restrictions in the Ordinance to comply with the Housing Element Law and the Housing
Accountability Act.
Analysis of Legal Issues
1. The Ordinance Is Invalid Because It Was Adopted as the Extension of an Urgency
Ordinance without Making Findings Required by State Law
The Ordinance is problematic because it was adopted as an extension of an existing
urgency ordinance without adequate evidence of circumstances justifying the extension. On this
1 https://oag.ca.gov/system/files/attachments/press-
docs/AG%20Letter%20to%20Pasadena%20re%20SB%209%20Urgency%20Ordinance.pdf.
2 https://www.hcd.ca.gov/docs/planning-and-community-development/sb9factsheet.pdf.
Los Gatos Mayor & Town Council
April 4, 2022
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point, the DOJ’s March 15, 2022 letter to the City of Pasadena is instructive. Like the Town of
Los Gatos, the City of Pasadena adopted an urgency ordinance pursuant to Government Code
Section 65858 in December 2021 to restrict the application of SB 9 when it came into effect the
following month. The Pasadena ordinance prohibited SB 9’s use in certain designated “landmark
districts.” Before the end of the 45 day initial term of Pasadena’s ordinance, the city extended the
ordinance for ten months and 15 days, just as the Town did in adopting the Ordinance.
In its letter, the DOJ opined that Pasadena’s extension of its urgency ordinance was
improper in the absence of evidence that would support findings specified in Government Code
Section 65858(c). According to that statute:
“[An urgency ordinance] that has the effect of denying approvals
needed for the development of projects with a significant component
of multifamily housing may not be extended except upon written
findings adopted by the legislative body, supported by substantial
evidence on the record, that all of the following conditions exist:
(1) The continued approval of the development of
multifamily housing projects would have a specific, adverse impact
upon the public health or safety. As used in this paragraph, a
“specific, adverse impact” means a significant, quantifiable, direct,
and unavoidable impact, based on objective, identified written
public health or safety standards, policies, or conditions as they
existed on the date that the ordinance is adopted by the legislative
body.
(2) The interim ordinance is necessary to mitigate or avoid
the specific, adverse impact identified pursuant to paragraph (1).
(3) There is no feasible alternative to satisfactorily mitigate
or avoid the specific, adverse impact identified pursuant to
paragraph (1) as well or better, with a less burdensome or restrictive
effect, than the adoption of the proposed interim ordinance.”
In an attempt to address the foregoing findings, the resolution extending the City of
Pasadena’s urgency ordinance stated simply that:
“[T]here is a current and immediate threat to public health, safety,
and welfare pursuant to the standards and policies set forth in the
General Plan … to preserve the established character of such
[landmark] zones and [to] allow sufficient time for staff to analyze
impacts and additional density in areas that were not studied for such
development under the General Plan[.]”
According to the DOJ, this summary statement was insufficient to pass muster under the
statute. This makes sense because, as indicated above, the statute states that to extend an urgency
ordinance that restricts development of multifamily housing, the local agency must make findings
Los Gatos Mayor & Town Council
April 4, 2022
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supported by substantial evidence of a “significant, quantifiable, direct, and unavoidable impact,
based on objective … standards, policies, or conditions.” Pasadena’s conclusory finding failed to
identify any “quantifiable” or “direct” health or safety impact based upon objective standards,
policies, or conditions.
Similarly, the Town Council failed to make adequate findings in adopting the Ordinance,
even though the Ordinance also restricts multi-family development by prohibiting the use of SB 9
in the HR zoning district and by imposing overly restrictive grading and unit size regulations in
connection with SB 9 projects. According to the Ordinance’s recitals, the Ordinance was
necessary to avoid threats to community character and to avoid negative impacts to property
values, privacy, and fire safety. Except for fire safety, none of these issues implicates health or
safety, and there does not appear to have been any substantial evidence before the Town Council
that adopting the Ordinance was necessary to address a “significant, quantifiable, direct, and
unavoidable impact” to fire safety “based on objective … standards, policies, or conditions.”
Therefore, the Ordinance should not have been adopted as the extension of an urgency
ordinance, and the Town should repeal the Ordinance and adopt a non-urgency ordinance instead.
2. The Ordinance Should Apply within the HR Zoning District
In revisiting the Ordinance, the Town Council should extend the application of SB 9 to the
HR zoning district. As addressed in prior letters from this firm, it is patently clear that the HR
zoning district is a single-family residential district. The use restrictions there are nearly identical
to those in other zoning districts designated by the Ordinance as single-family residential districts,
and there is no sound basis to treat the HR zoning district differently.
On this point, HCD’s recent fact sheet contains very strong language in support of our
position. According to the fact sheet at page 1:
“In communities where there may be more than one single-family
residential zone, the local agency should carefully review the zone
district descriptions in the zoning code and the land use designation
descriptions in the Land Use Element of the General Plan. This
review will enable the local agency to identify zones whose primary
purpose is single-family residential uses and which are therefore
subject to SB 9. Considerations such as minimum lot sizes, natural
features such as hillsides, or the permissibility of keeping horses
should not factor into the determination.”
This language is instructive because the only things that distinguish the HR zoning district
from other single-family residential districts in the Town are that lots in the HR zoning district
tend to be larger with steeper slopes, and limited agricultural uses are allowed in the HR zoning
district.3 As the foregoing language makes clear, however, these are not relevant factors. What
matters is that the “primary purpose” of the HR zoning district, both on the face of the Zoning
3 Compare Sections 29.40.385, 29.40.725, and 29.40.235 of the Zoning Code.
(Continued)
Los Gatos Mayor & Town Council
April 4, 2022
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Code and in practice, is single-family residential use.4 Therefore, as a matter of state law, the HR
zoning district is a single-family residential district for purposes of SB 9, and the Ordinance should
reflect this circumstance.
3. The Ordinance’s Restrictions on Unit Size and Grading Violate SB 9 and SB 330
As indicated in our prior letters, the Ordinance’s restrictions on grading and its requirement
that the first residential unit constructed on a lot pursuant to SB 9 not exceed 1,200 square feet are
significant restrictions that will substantially limit the ability of homeowners to take advantage of
SB 9. According to the DOJ’s letter to Pasadena, local restrictions designed to thwart SB 9
constitute an “abuse” of local discretion. According to the DOJ, such restrictions also violate
Government Code Section 66300(b)(1)(B)(i), which is part of SB 330, and which prohibits
moratoria or “similar restrictions” on housing development.
The HCD fact sheet goes further than the DOJ letter and states that a local agency also
violates SB 330, and more specifically Government Code Section 66300(b)(1)(A), if it treats units
produced under SB 9 substantially differently from units produced under the local agency’s pre-
existing zoning rules. According to HCD at page 7 of the fact sheet:
“A local agency should proceed with caution when adopting a local
ordinance that would impose unique development standards on units
proposed under SB 9 (but that would not apply to other
developments). Any proposed modification to an existing
development standard applicable in the single-family residential
zone must demonstrate that it would not result in a reduction in the
intensity of the use. HCD recommends that local agencies rely on
the existing objective development, subdivision, and design
standards of its single-family residential zone(s) to the extent
possible.”5
As defined in SB 330, a reduction in intensity includes anything that reduces “height,
density, or floor area ratio … or any other action that would individually or cumulatively reduce
the site’s residential development capacity.” Both the grading and unit size limitations in the
Ordinance meet this definition. The grading limitations make it impossible to construct anything
on a lot created by an SB 9 Urban Lot Split if the project would require a grading permit or grading
activity in excess of 50 cubic yards cut plus fill. With respect to the unit size limitation, under the
City’s FAR requirements in Section 29.40.075 of the Zoning Code, a property owner could
construct a home several times as large as 1,200 square feet on a typical lot in the HR zoning
district. Thus, the 1,200 square foot size limitation for the first single-family home constructed on
a lot pursuant to SB 9 severely limits the development capacity of the site, especially in the case
of a homeowner who wants to build a single unit on a lot created under SB 9.
4 See Section 29.40.235 of the Zoning Code, listing single-family residential use as the first permitted use in the HR
zoning district.
5 Emphasis added.
Los Gatos Mayor & Town Council
April 4, 2022
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Accordingly, as the DOJ letter and HCD’s fact sheet make clear, the Ordinance violates
both SB 9 and SB 330, and the Town Council should revisit the Ordinance to eliminate
inconsistencies with state law.
4. The Town Council Should Revisit the Ordinance to Comply with the Housing
Element Law and the Housing Accountability Act
The Town Council also should revisit the Ordinance to comply with the Housing Element
Law, Government Code Section 65580, et seq., and the Housing Accountability Act (“HAA”),
Government Code Section 65589.5. With respect to the Housing Element Law, Government Code
Section 65583(a)(5) requires housing elements to address governmental constraints to increased
housing development, and Section 65583(c)(3) states that the housing element should include
programs to address and remove such constraints.
HCD has made clear as it reviews draft Sixth Cycle housing elements that it expects local
agencies to identify and analyze all governmental constraints to housing production and to propose
solutions to each such constraint. For all the reasons discussed above, the Ordinance clearly is a
governmental constraint to housing production imposed by the Town, and the best and most
appropriate way for the Town to eliminate that constraint is to repeal the Ordinance and to replace
it with an ordinance that complies with state law.
Repealing the Ordinance and replacing it with something consistent with state law is also
necessary to comply with the HAA. The HAA states at Government Code Section 65589.5(j) that
absent specified health and safety findings, a housing development project that complies with all
“applicable” local agency objective standards must be approved at the density proposed. The term
“applicable” here is key. The Ordinance contains several standards that are not “applicable”
because they violate state law, including the failure to extend SB 9 to the HR zoning district and
the Ordinance’s unit size and grading limitations. If an applicant were to apply for a project under
SB 9 that otherwise complies with all “applicable” objective standards but not one or more of the
Ordinance’s illegal (and therefore inapplicable) standards, and if the Town were to deny the project
based upon such inapplicable standard, then the Town would be in violation of the HAA.
A violation of the HAA carries significant consequences. Under Government Code Section
65589.5(k), a court can order compliance with the HAA, it can levy substantial fines, and it can
order the local agency to pay the petitioner’s attorneys’ fees and costs. In view of these
consequences, the Town Council should revisit the Ordinance to avoid violating the HAA.
Conclusion
For the foregoing reasons, we ask the Town Council to reconsider the Ordinance and to
adopt something in its place consistent with state law. We believe this can be done in a thoughtful
manner that will preserve the unique character of the Los Gatos community. If the Town’s
restrictive policies remain in effect and prevent staff from approving SB 9 applications that comply
with State law, the Town will be placing property owners and residents in a position where they
will have little choice but to pursue legal action. If suit is filed on behalf of any of our clients, we
will seek to recover our attorneys’ fees pursuant to the HAA and Code of Civil Procedure Section
Los Gatos Mayor & Town Council
April 4, 2022
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1021.5. Our preference, however, is to resolve our concerns informally. We invite an opportunity
on behalf of our clients to discuss those concerns with Town officials and to chart a path forward.
Very truly yours,
BERLINER COHEN, LLP
ERIK RAMAKRISHNAN
Cc: manager@losgatosca.gov, attorney@losgatosca.gov
From: Fred Faltersack
Sent: Thursday, April 21, 2022 10:56 AM
To: Housing Element <HEUpdate@losgatosca.gov>
Cc: Jennifer Armer <JArmer@losgatosca.gov>
Subject: Re: Public Comment for April 21, 2022 HEAB Meeting
RE: Comments for the April 21, 2022 Meeting of the Housing Element Advisory Board
Dear Members of the Board,
Being a life-long resident of Santa Clara County and more specifically 36 years in the Town of Los Gatos, I
have witnessed a lot of politics, policies, and ordinances which in my opinion do not favor "owners
property rights". I sum up the Town's mentality towards housing growth as a “Delay-Deny-and Hope you
die policy”.
If over the past 40 years, Los Gatos would have been less restrictive and more open to housing inventory
growth, we would not be in the situation requiring something such as SB9 today.I believe increasing
housing inventory has the effect of providing more affordable housing in Los Gatos. Additionally,
allowing Granny units, Secondary dwelling units ADU’s on single family properties has the same effect as
providing more affordable housing in Los Gatos. In my opinion, It’s all about "supply and demand”, if you
increase the available housing supply, the demand will be satisfied and the direct result will be more
affordable housing.
I support SB9 in ALL Single Family Residential Communities within the Town of Los Gatos. Furthermore I
am 100% against the Town’s attempt to circumvent State Law and pick-and-chose which Single Family
areas SB9 should apply to.
Regards,
Fred Faltersack
Los Gatos, CA. 95032
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