Desk Item. Referendum
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 10/18/2022 ITEM NO: 11 DESK ITEM
DATE: October 18, 2022
TO: Mayor and Town Council
FROM: Gabrielle Whelan, Town Attorney
SUBJECT: Discuss the Housing Element Process and the Next Steps for the Referendum
of the 2040 General Plan Land Use and Community Design Elements, and
Provide Direction on the Preferred Approach for the Referendum
REMARKS:
The following information is provided in response to questions from Council Members since the
posting of the staff report, and attachment 1 contains public comments received between
11:01 a.m. Monday October 17, 2022 and 11:00 a.m. Tuesday, October 18, 2022.
How different does a new/replacement Land Use Element need to be from the Land Use
Element that is the subject of the referendum?
Case law addressing this issue provides that the new legislation can’t be “essentially identical”
to, or retain all the “essential features” of, the referended legislation. The new legislation
needs to be “essentially different.” Courts recommend that public agencies focus on the
features that gave rise to the objection to begin with and avoid re-enacting those features. For
example, I have located case law discussing referenda of a lease and a franchise (but no cases in
the land use context). In both cases, the public agency re-approved the lease and franchise, but
with slightly different terms such as the length of the agreements. The court ruled that, when
entry into the lease and the franchise was the subject of the referendum, the public agency
could not just make slight changes to the terms.
What is the remedy in the event that new legislation is “essentially identical” to the
referended legislation?
The remedy for a referendum proponent would be to seek a writ of mandate to overturn the
agency’s approval of the new legislation and to seek a stay against its implementation.
Alternatively, the new legislation could be referended.
PAGE 2 OF 2 SUBJECT: Housing Element Process and Next Steps on Referendum of 2040 General Plan Land Use and Community Design Elements DATE: October 18, 2022
REMARKS (continued):
If the Land Use and Community Design Elements are rescinded, will the resolution suspending
those two Elements need to be revised?
Yes, the Town Council would need to adopt a resolution to either:
1) Provide that the 2020 Land Use and Community Design Elements will remain in effect
until revised Elements are adopted; or
2) Adopt revised Elements.
ATTACHMENTS:
1. Public Comments