15 Attachment 10 - November 29, 2023, Planning Commission Verbatim MinutesLOS GATOS PLANNING COMMISSION 11/29/2023
Item #2, Draft 2023-2031 Housing Element
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
Jeffrey Barnett, Chair
Steve Raspe, Vice Chair
Susan Burnett
Melanie Hanssen
Kathryn Janoff
Town Manager: Laurel Prevetti
Community Development
Director:
Joel Paulson
Town Attorney: Gabrielle Whelan
Transcribed by: Vicki L. Blandin
(619) 541-3405
ATTACHMENT 10
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P R O C E E D I N G S:
CHAIR BARNETT: Under Verbal Communications
tonight the public is going to speak on Agenda Item 1,
which we’ll get to shortly, and I will explain the Town’s
guidelines pertaining to Verbal Communications when we get
to that point in the agenda.
We’ll now consider Agenda Item 1, in which we are
asked to consider and make a recommendation to the Town
Council on the Draft Revised 2023-2031 Housing Element.
Location is Town-wide. General Plan Amendment Application
GP-22-003. Do we have a Staff Report tonight on this
matter? Thank you.
JOCELYN SHOOPMAN: Good evening. The primary
purpose of the item this evening is to consider and make a
recommendation to the Council on whether to adopt the Draft
Revised Housing Element with modifications in response to
the HCD Draft Preliminary Review Matrix that the Town
received on November 7th.
On November 16th the Draft Revised Housing Element
was made available for a seven-day public review period
ending on November 27th as required prior to resubmittal to
HCD. An addendum report was provided to the Commission
yesterday that contained the public comments received
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during the seven-day review period, as well as the cover
letter that was provided to HCD as part of the Town’s
November 28th resubmittal of the Draft Revised Housing
Element.
Staff anticipates receiving HCD’s comment letter
this Friday, December 1st.
The Town Council’s consideration on the adoption
of the Draft Revised Housing Element is tentatively
scheduled for December 19th.
A Desk Item was also provided to the Commission
today with additional public comments received following
the publishing of the addendum report, a copy of the
response memorandum to the Draft Preliminary Review Matrix
provided by HCD; and a copy of the technical memorandum
regarding Accessory Dwelling Units that was prepared by the
Association of Bay Area Governments.
This completes Staff’s presentation. We are
available for any questions, as well as the Town’s Housing
Element consultant, Veronica Tam.
CHAIR BARNETT: Thank you, Ms. Shoopman, and I’ll
ask my fellow Commissioners if they have questions of you
at this time? Commissioner Hanssen.
COMMISSIONER HANSSEN: Thank you for that, and I
did want to compliment Staff. The Housing Element looks as
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good as it ever has been, and hopefully we’re going to be
there with HCD.
I have some concerns about the timeline of the
submissions, and it was also noted in public comments. My
question for Staff at this point is the draft without any
changes between then and now was submitted to HCD on the
16th. They were told to consider the date of submittal
today, is that correct?
JOCELYN SHOOPMAN: There was an informal
submittal to HCD that occurred on November 16th providing
them with a copy of Draft Revised Housing Element and also
making them aware of when the seven-day review period would
be occurring; this was offered to the Town by our HCD
reviewer to provide them with this informal submittal,
knowing that the seven-day review period would be occurring
followed by the Town’s formal resubmittal to HCD.
COMMISSIONER HANSSEN: Thank you for that. My
follow up question is if the actual submittal was today, or
I guess the 28th was yesterday, the actual submittal was
yesterday, given there were a fair amount of items left
from the November 7th matrix for them to look at, are they
still going to be able to complete their review and get a
letter by December 1st? That seems like not a lot of time,
given the past history you guys have encountered.
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JOCELYN SHOOPMAN: Thank you for the question.
Yes, obviously we would have liked to get it to them
sooner, but with the holiday that did present some
challenges in terms of timing. Our hope is that he’ll be
able to complete that review for the December 1st letter so
it does address many of those comments in the matrix, but
ultimately we will find out when we receive that comment
letter on Friday.
COMMISSIONER HANSSEN: Is it possible that their
comment letter could be we’re not ready to make a full
comment on the submission?
JOCELYN SHOOPMAN: Our consultant may want to
also chime in, but once there is a formal submittal to HCD
they have very clear timelines that they have to follow, so
there will be a comment letter that’s provided to the Town
on December 1st.
COMMISSIONER HANSSEN: Okay, thank you.
CHAIR BARNETT: Other questions for Staff?
Commissioner Janoff.
COMMISSIONER JANOFF: So they’re obligated to
provide a comment letter on December 1st covering the
September submittal. Is it fair to say that the portions of
the draft that were resubmitted yesterday may not be
considered or included in their December 1st comment letter?
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JOCELYN SHOOPMAN: Yes, there is that potential.
COMMISSIONER JANOFF: Thank you.
CHAIR BARNETT: Other questions? Commissioner
Burnett.
COMMISSIONER BURNETT: Thank you. Question for
Staff. Can you go over again why we did have a Planning
Commission meeting on the 15th then, since there was a new
matrix and there was work being done on the revised Housing
Element the next day.
JENNIFER ARMER: Thank you for that question.
When scheduling public hearings they do need to be set and
scheduled a significant period of time ahead of time so
that we can make sure that we have the required public
noticing and ads to the paper, and that takes several weeks
in advance of the date of the hearing.
In the case of the 15th, we were hoping that we
would have the opportunity to meet with the Town’s reviewer
to get some initial feedback, and so we were hoping to have
the discussion on the 15th with some revisions. That didn’t
occur as early as we had hoped, and so we weren’t able to
present to Planning Commission the fully revised Housing
Element based on that interim feedback. That is why we
recommended continuance to this evening, so that you have
sufficient time, in this case nearly two weeks, to take a
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look at the full revisions that have been made in response
both to the previous letter from HCD and the interim
review.
CHAIR BARNETT: Commissioner Hanssen.
COMMISSIONER HANSSEN: When we met on the 15th you
went through some changes to the sites inventory and some
other changes that you’re going to make, and I believe they
were all positive in terms of the draft that we just saw,
and in particular the affordable housing AFFH matrix looked
great.
Now, given what Commissioner Janoff asked,
they’re commenting primarily on the draft that they
received in early October, so given the changes in the
sites inventory, although we didn’t add any new sites, what
is the likelihood that they’re going to be able to
realistically give a thumbs up on this? They don’t have a
lot of time to review a couple of really important inputs.
JENNIFER ARMER: Thank you for that question. We
are still hopeful that these additional changes that were
prepared two weeks ago can be incorporated into the review
that results in the letter on Friday; there still is a good
chance of that.
I also invite Veronica Tam, our consultant, if
she’s available, to turn on her camera and join us to talk
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about how these interim reviews have worked with her and
other agencies in the past.
VERONICA TAM: Thank you, Jennifer. They’ve seen
a lot of the revisions that we have made throughout that
process, and I think it’s based on we try to respond very
well with the matrix that they have provided. I think the
last set of changes is very specific. I am hoping that he
would have the opportunity to review it.
The reviewer contacted me this morning and asked
me to make sure that the City is able to submit the
revisions as soon as possible, and so I am again hopeful,
along with Staff, because he contacted me and gave us a
deadline by the end of the day that he would be able to
review those changes and incorporate that into the letter,
so there is a good chance. I would not be able to speculate
whether he will, but there is a chance, because he did ask
and gave us a deadline today.
COMMISSIONER HANSSEN: If I could ask a follow up
question. Thank you for that explanation; that was helpful.
I’m assuming that they’re working primarily from
the matrix that they gave us on November 7th. Is it typical
in your experience that they would limit their review only
to those items that weren’t covered and not look at new
things?
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VERONICA TAM: Correct, that’s what we usually do
and that’s the reason why we always highlight, and that was
the questions that he had asked me a few days before ahead
of time too, if the changes would be differentiated from
the previous revisions. We usually use different
highlighting to illustrate the different stages of the
changes that we’ve made based on different versions of the
matrix. The reason why we do that with highlighting is to
actually make sure that they focus on the latest revisions
that address the latest matrix.
COMMISSIONER HANSSEN: Okay, thank you very much.
CHAIR BARNETT: Other questions? I have a couple
for Staff. Has the Town received a response from HCD
regarding the inquiry as to whether the Housing Element
filing will be deemed to have been received at the end of
the day on November 27th? It was a request from Mr. Paulson
to HCD on that.
JENNIFER ARMER: We did submit yesterday the 28th,
and we did receive acknowledgement from our reviewer that
it had been received yesterday, so the formal submittal of
this interim draft is considered submitted yesterday the
28th.
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CHAIR BARNETT: If I understand correctly, you’re
saying that HCD has agreed with the Town’s position that
the submittal was on November 27th?
JENNIFER ARMER: It actually was formally
submitted on the 28th, so there was the correspondence back
and forth about sharing the preliminary draft previously
and wanting to make sure that they did not consider the
email on the 16th as being a formal submittal, because we
had not yet completed the seven-day review. The formal
submittal of this interim draft with additional revisions
was yesterday the 28th, and they have confirmed that they
received it on that date.
CHAIR BARNETT: Okay, thank you. One other point
here. There was a comment from the public that the mid-
cycle submission would start a new 60-day review period. Do
you have a comment on that? This was in Exhibit 12, number
four on page two.
JOCELYN SHOOPMAN: Thank you for the question. In
speaking and corresponding with our HCD reviewer, what was
provided in an email on the 16th was an informal submittal;
it did not constitute an actual formal submittal, and we
noted that the seven-day review period would be starting on
that day and ending on a certain day, so no, it’s not our
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understanding that it constitutes a new 60-day review
period.
JOEL PAULSON: Through the Chair, just to add,
the formal submittal that occurred yesterday does start a
new 60-day clock.
CHAIR BARNETT: Thank you for that clarification.
I might as well take this opportunity to ask Staff about
the consequences if this hearing were continued to a date
in the future based on the expectation of input on December
1st, which is 48 hours away?
JENNIFER ARMER: Thank you for that question, and
I understand the interest in finding out what’s in that
letter; I think we’re all eager to see it.
Staff is recommending that Planning Commission
make a recommendation on the Draft Housing Element this
evening because of an interest in allowing the Town Council
to consider adoption of the Housing Element before the end
of the year. Their final meeting is on December 19th. The
deadline for submitting an ad to the newspaper for that
meeting is actually first thing tomorrow morning, and it is
required by State law to include specifically what the
Planning Commission recommendation is, so this really is
the last date for us to be able to bring this for
consideration by Town Council before the end of the year.
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CHAIR BARNETT: I see some hands up here. We’ll
start with Vice Chair Raspe.
VICE CHAIR RASPE: Thank you, Chair. If I can
follow up, because it seems like we’re pressing forward in
quick fashion, which I take to mean that we’re trying to
avoid certain consequences. Can you remind us, and the
public as well, what the consequences are for failing to
timely put into place the Housing Element.
JENNIFER ARMER: Thank you for that question.
I’ll start, and the Town Attorney may have something to
add. The goal here is to get a Housing Element adopted and
certified as early as possible in order to avoid any
additional Builder’s Remedy applications. There are a lot
of reasons that it is beneficial for the Town to have an
adopted Housing Element.
As the information that was provided to Planning
Commission shows, there has been a lot of work that has
been done over this last year to bring the Draft Housing
Element into compliance with State law. The long chart that
was included in your addendum, for example, goes through
the State regulations section-by-section to show
specifically how this updated Housing Element does address
all of those components.
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So while we do not have the final blessing from
the State as of yet, the information that we have provided
we hope will allow the Planning Commission to make a
recommendation this evening.
VICE CHAIR RASPE: Thank you for the answer.
CHAIR BARNETT: Commissioner Hanssen and then
Commissioner Janoff.
COMMISSIONER HANSSEN: A related question to
that. There has been some misinformation, I think, that has
been floating around. What I heard is that we need to go as
soon as possible, but there isn’t an official deadline, and
so I’m asking Staff to confirm the only deadline that I’m
aware of is on January 31, 2024, the deadline to have the
rezoning completed.
JOCELYN SHOOPMAN: That’s correct.
COMMISSIONER HANSSEN: Which has been done with
the exception of one site that is not integral to the
success of the sites inventory.
CHAIR BARNETT: Commissioner Janoff.
COMMISSIONER JANOFF: Thank you. I think we all
want to see the letter on December 1st. Before the Planning
Commission makes a recommendation it seems prudent that we
would have that information in hand before we would
recommend the Town Council adopting the current draft.
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However, when I look at the progress that’s been
made between the original submission, the draft in
September, and the relatively minor but specific changes
that were in our package today, I feel confident that we
have a good document. I did before, but I feel even more
confident now.
My question to Staff is cant the Planning
Commission make a recommendation this evening that Town
Council adopt the November draft of the Housing Element
with the condition that if the letter from HCD on December
1st is a no or noncompliance, that that recommendation would
not go forward?
ATTORNEY WHELAN: That could be done. An
alternative would be to adopt the resolution and if HCD
were to recommend significant changes, those changes could
either be made before the Town Council meeting, or
alternatively the Planning Commission could meet again.
COMMISSIONER JANOFF: Thank you.
CHAIR BARNETT: My intent was to go forward with
the public comment for tonight, and then following that
perhaps it would be appropriate for the Commission to
consider the procedural status of the hearing before we go
into a detailed review of the matrix as a way to proceed.
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With that in mind, I’ll open the public portion
of the meeting where members of the public are allotted up
to three minutes to comment on Agenda Item 1, and as at all
of our meetings, the public’s input is very much
appreciated and welcomed and the Planning Commission
considers the comments carefully.
During tonight’s meeting any person may speak
after being recognized by the Chair, and no person other
than the Commissioners, Staff, and the person having the
floor shall be permitted to enter into the discussion. No
member of the public is allowed to speak more than one
time, and to assure the opportunity for all people to
participate there is no yielding of time to another
speaker.
We have several cards up here, but if you haven’t
already submitted on, please hand one to Staff and we’ll be
sure to include you. When your name is called, please come
to the microphone and state your name and address, if you
would, or you can speak anonymously. Again, in fairness to
all speakers the comments are limited to three minutes.
I’ll begin with Ms. Quintana.
LEE QUINTANA: To begin, I’ll make some
disclosures. I was a member of the GPAC for 2040 and I’m
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currently a member of the Historic Preservation Committee,
at least until the 31st, and I’m speaking as an individual.
I thought about what I was going to say today all
day and it kept changing, and I kept coming up with some
statements that are just clichés that all seem to fit. One
was I feel like I’m in the middle of a skit of Who’s on
First and What’s on Second. I feel like I’m trying to read
and make comments on a moving target, and a moving target
that isn’t even all visible at one time. This is really
getting to be ridiculous, and the more these halfway
reports come out, the more complicated and bizarre this
whole process has become.
If as the attorney said, you can meet again
before the Town Council after the receipt of the comments
from HCD, I would think that’s what you would want to do so
you weren’t just making a decision to approve something, or
recommend approval of something, that you didn’t even know
what it was, so to speak.
The other thing I want to say is that HCD
comments, to me, said they’re focused on about three
things.
They were focused on the previous Housing
Element’s evaluation factors that are in the way of
achieving, and the AFFH, but there were overlaps with all
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of them. To me, reading through the revised text, there’s a
lot of it, but I don’t think it adequately addresses HCD’s
comments and I would be very surprised if they didn’t make
those comments. They seem to indicate that even the site
inventory isn’t approved yet; because they need the
analysis from those other evaluations before they can even
address that.
One of the things that they commented on was the
lack of zoning for multiple-family distributed evenly
throughout the Town.
I’m out of time, but I have a lot more to say.
CHAIR BARNETT: Let’s see if the Commissioners
have questions for you. I don’t see any. We only have one
other speaker card, so would you like to speak for another
minute?
LEE QUINTANA: To me, one of the problems with
the analysis in the first place is that like for AFFH it’s
divided into little pieces. All the way along each piece is
answered, each piece compares it to the region and to the
county, etc., but there is no point at which all of that
information gets reaggregated again and analyzed in a
totality, because there are contradictions within each of
those different sections; that’s the analysis that I think
the state is looking for.
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Also, things that are in the way, so to speak—
I’ve lost the word—we talk about them but we don’t give any
specific examples. What is the town zoning that the Town
has that impeded achieving our goals in the Housing
Element? The information is not specific enough.
CHAIR BARNETT: Thank you for your comments. They
are appreciated. Mr. Fagot.
LEE FAGOT: Good evening, and I’m speaking as a
citizen of the Town of Los Gatos; I’m not representing any
group.
I did want to commend all of you for the work
that you’ve been doing. It has been very difficult, I know,
because of the dynamic changes that are occurring.
One of the things I would ask for is that Santa
brings everybody a calendar, and that they all use the same
calendar for planning, because what we have is one that the
town Staff uses, one that HCD uses, one that the Planning
Commission uses, the Town Council, and they don’t mix
together terribly well. For example, the November 15th
meeting that you held was actually a very good and
informative meeting, I appreciate it, however, we learned
that the next day, the 16th, without citizen or Council
review, the staff submitted the new draft to HCD that had
significant changes, so there wasn’t, again, the
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opportunity to review. The public comment period of seven
days is before submission, not after or concurrent with a
submission, as you just discussed a few minutes ago. Now I
have learned tonight that yesterday another submittal was
made.
I’m going to skip my notes, because I think Ms.
Quintana made a lot of very good points that there needs to
be better coordination between the Planning Commission, the
Housing Element Advisory Board, the town Staff, then to the
Council. The Council needs to give the final review and
direction, but the citizens need an opportunity as well, as
is outlined in the law.
Again, I appreciate the challenges that you face
and the work that you’ve done, but let’s work together
better going forward. A lot of lessons coming out of this
are that trying to do the General Plan and then doing the
Housing Element, the sequence was not good. Let’s work on
one universal calendar that we can all work with together
and put it in a logical sequence of feedback from the
consultant, which was not provided earlier after her
meeting; and the Town Staff meeting with HCD was not given
back to this Commission or the Housing Element Advisory
Board, or the Town Council after the consultant’s meeting
with HCD, so changes in the process need to occur, and
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again, I appreciate all that you’ve done and wish you well.
Thanks.
CHAIR BARNETT: Thank you, sir, for your
comments, and we have a final card from Mr. Alarcon.
TONY ALARCON: Tony Alarcon, (inaudible.) Many of
us head up to Tahoe into Truckee quite often. Truckee has a
population very similar to ours, a lot of affluent
retirees. Like our town, they have a lot of affluent
people.
I want to say thank you for all your hard work
from the Planning Commission.
I’ve looked at Truckee’s Housing Element plan.
They have a master plan called the Truckee Hilltop; it was
approved in 2008. It’s not yet been built. It’s 300 units,
54,000 square feet of commercial, and a 60-room hotel. For
15 years that project hasn’t been built, and looking at
their Housing Element plan the last submission from them
was 2019. They submitted that plan on August 30th and it was
approved on September 16th.
I sit back and I look at our town, and we’re
going through this whole process and I think it echoes what
the other speakers have expressed. I sincerely don’t
understand how this has taken so long, and it feels as
though there have been many errors, whether it’s not
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keeping track of the consultants, the communication between
departments, or perhaps trying to overachieve and build too
many units instead of simply complying with our RHNA
numbers.
It’s mind boggling to me, and I feel for the
Planning Commission. I hope that our Town citizens hear
what I’ve said today and ponder that as well when you
decide to vote in the next election and look for leadership
within our town, that we need to streamline our process and
we need to do better. We need to be a leader with other
towns instead of having these delays and having citizens
not know what’s going on.
Asking the Planning Commission to approve a plan
before they have received a letter of comments from the HDC
is not a valid approach. Thank you.
CHAIR BARNETT: Thank you, sir. Are there any
questions from Commissioners? I don’t see any. I don’t have
any more cards. Do we have anyone on Zoom?
JOEL PAULSON: We do, thank you, Chair. The first
to speak will be Ron Meyer.
RON MEYER: I’m not going to be as complimentary.
I’m actually going to call it the way is and the way I’ve
seen this process evolve over the last 12-16 months, and
the failure in the ability to inform the public, to manage
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the previous consultants in their three failed attempts,
and the waste of $180,000 of taxpayer money.
I see a level of incompetence in both the Staff
and the Planning Commission, because the Planning
Commission has not basically taken the recommendations from
the Housing Element Advisory Board and the Los Gatos
Community Alliance seriously. There is some damn good
analysis in both some of the HEAB reports in the previous
meetings, and also the latest letter from the Los Gatos
Community Alliance.
The incompetence, the non-transparency, the
confusion, the mis-coordination, the oversight by the Town
Council, and the usurping of their power by the Town’s
staff and pieces of the Planning Commission is not
favorable, it is not even remotely the way that this
process should have been conducted. The citizens of Los
Gatos deserve better. They deserve better in the Town
Staff, they deserve better in the Planning Commission, and
consequently we’re not being serviced properly at all.
The process has been non-transparent, confusing,
and convoluted. The Town Council hasn’t been doing their
job in terms of exercising their oversight responsibilities
over this whole process, so consequently we, this town’s
citizens, are going to end up paying for this, because of
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that incompetence, that non-transparency, and the whole
screwed up process from the beginning. You folks are
reprehensible. I’m finished.
CHAIR BARNETT: Thank you, sir. Are there any
questions by Commissioners? I don’t see any. Thank you once
more. Any other callers on Zoom, Mr. Paulson?
JOEL PAULSON: Thank you, Chair. Anyone else on
Zoom who wishes to speak, please raise your hand. I don’t
see any hands raised, Chair.
CHAIR BARNETT: Thank you very much. I will now
close the public portion of the meeting and again propose
that the Commissioners first discuss the procedural issues
that have been raised by the Los Gatos Community Alliance
concerning continuing the meeting to a date following
Friday’s anticipated receipt of HCD’s comments on the
submittals of November 16th and 28th, and that the public was
not afforded the statutory time to comment on the Housing
Element drafts.
We haven’t discussed that issue yet, and maybe
it’s a moot point depending on how our discussion goes, but
I’d like to open and ask Commissioners to comment on the
issue that we’ve already brought up about a possible
continuance to a different date. Commissioner Janoff.
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COMMISSIONER JANOFF: Thank you. We have an
interesting problem in front of us. We have a timing issue
that has been described by Staff with regard to getting
adoption of the Housing Element in front of Town Council as
soon as possible for the reasons stated, which makes sense,
and we also have incomplete feedback from HCD.
Personally, I can see a path forward, as I
suggested earlier, where we can recommend that the Town
Council hear the item on the 19th, understanding that we may
get more information. But if HCD on December 1st says yes
you are in compliance, I would not want the Planning
Commission to be the body that’s holding up Town Council
being able to hear this, and we will be if we don’t
recommend to Town Council tonight, so in my mind I’m
separating the task before us into making a timely
recommendation to Town Council that will be after the
Planning Commission has an opportunity to see the HCD
comments, as well as public, as well as Council, as well as
anyone, and I would feel more comfortable.
Assuming HCD says yes you’re in compliance, I
think that’s fine, end of story. If HCD says on December 1st
that we have work to do yet, I think we should reconvene
the Planning Commission or Housing Element Advisory Board,
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whatever is appropriate, in order to be able to process
that information and make recommendations going forward.
I feel like we can separate this and still
provide a timely path for Council should the letter on
December 1st be favorable, but provide a backup in case it’s
not so that the Planning Commission can review the
information provided.
CHAIR BARNETT: That sounds like the possible
elements of a motion, but I’ll ask other Commissioners if
they have comments? Commissioner Hanssen.
COMMISSIONER HANSSEN: As you all know, I was
chair of the Housing Element Advisory Board, and we may or
may not be meeting again, I’m not sure.
As mentioned earlier and as mentioned by
commenters, this is a very difficult situation to be in, to
try to make a recommendation on something when we know two
days later that we’re going to get a letter from HCD. I
wanted to point out a couple of things.
One thing that’s really important is irrespective
of whatever decision was made before to hire other
consultants that might not have been as effective, I’ve
been very impressed with the work that Veronica Tam and her
team have done with Staff to move the Housing Element
towards the finish line, and when that decision was made to
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hire her the Housing Element Advisory Board, when we had
discussions about it, felt that she had the best path
forward to know how to take this thing over the finish line
versus the members of the Housing Element Advisory Board
who had less experience working with HCD; we don’t interact
directly with HCD at all in our role, and so I think that’s
important, that she’s been very integral to this process
over the last few months.
When I look at the progress of the document, we
never have had any comments from HCD that our sites
inventory isn’t adequate; they just wanted more information
on how to develop it. This new law with AFFH has been
particularly difficult to deal with, but because of
Veronica Tam’s experience with other jurisdictions she has
a clear directive of how to answer all those questions and
do all the analysis that is required.
That being the case though, I do remain very
uncomfortable with making a recommendation to approve
something when I know that two days later it could be one
or the other and we have no assurances from anyone that HCD
will or won’t go forward. We can hope. As I said, the
document is in the best shape that it’s been in in a long
time.
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One change that was made in the sites inventory
that I don't know if everyone has been able to observe; we
had gotten comments on the 15th. There was a time in this
process earlier this year when it was thought that we could
add in some sites from the previous cycle, and now there
has been more clarity to take some of those out because of
the date that you had to count, which I believe was June
30th of 2022, and it had to be after that date.
When those sites were added back in we had quite
a bit of a larger buffer relative to our State mandated
numbers, and we did get a lot of comments from the public
saying that they were very uncomfortable with having more
numbers of units planned for, and now those numbers have
been backed out as expected and directed by HCD so that our
current sites inventory numbers and buffer to RHNA is
actually right in the range of what was always expected,
which was a 15-20% buffer over the RHNA of 1,993 units.
That being the case, there have been a lot of
questions from the Los Gatos Community Alliance about
projects that are in the sites inventory, and I believe
Staff did answer all of those. I read all the materials. I
had looked through and saw that Staff did address those
concerns about no net loss and when that would be
recognized, and some of the other concerns.
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But I do remain concerned about making a
recommendation on something when we know that two days from
now it could be one or the other, so it’s going to be a
scenario of we would go forward and HCD says yes, or they
say no, or we continue and they say yes or say no, and the
optimal circumstance would be we would go forward and they
would say yes, and then everything would be fine and Town
Council could go ahead, but we don’t know if that is
possible.
I do like Commissioner Janoff’s suggestion about
modifying how we would approve it. I think that might be
better than continuing it and pushing it out into the new
year, because there is more of a risk of the additional
Builder’s Remedy applications.
CHAIR BARNETT: Thank you. Other Commissioners?
Commissioner Burnett.
COMMISSIONER BURNETT: A question for Staff,
thank you. What would happen if the Planning Commission did
not vote to move it forward to the Town Council?
ATTORNEY WHELAN: We just need a recommendation
one way or the other, and so the recommendation can be yes
we recommend approval, or we don’t recommend approval. The
law just requires that the Planning Commission make a
recommendation.
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COMMISSIONER BURNETT: What would be the
consequence?
ATTORNEY WHELAN: It would continue on to the
Town Council ultimately for a decision as to whether or not
to adopt the Housing Element.
COMMISSIONER BURNETT: So the Town Council does
not need our recommendation for them to move forward with
it?
ATTORNEY WHELAN: They need a recommendation in
front of them to consider, and the recommendation can be
either for approval or rejection.
I just wanted to follow on about the discussion
of having the item returned to the Planning Commission.
Just so the Planning Commission is aware, that would mean
that we would be back on the schedule of being in front of
the Town Council in January, just as a point of
information.
CHAIR BARNETT: Commissioner Janoff.
COMMISSIONER JANOFF: Just to clarify, if we were
to recommend Town Council approval with the condition that
Planning Commission meets if HCD provides a negative
response on December 1st, are you saying that…
ATTORNEY WHELAN: Yes, because we need the
Planning Commission’s recommendation to the Town Council,
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and so that would necessitate a return to the Planning
Commission, meaning that the Town Council would most likely
meet on the Housing Element in January.
COMMISSIONER JANOFF: But if the Planning
Commission should vote to recommend Town Council adopt this
draft of the Housing Element with the condition… I guess
that would be the problem is the condition, so there’s no
opportunity for the Planning Commission to reconvene if the
response from HCD is negative without restarting the clock
and pushing things out into January; that’s what I’m
hearing.
ATTORNEY WHELAN: Right.
JOEL PAULSON: Through the Chair, I would just
add that if we get additional comments on December 1st and
we are going to have to make revisions we ultimately are
going to have to come back through seven-day review of
those revisions, the Planning Commission for a
recommendation, and then Council for another adoption.
I think the one opportunity this provides, and
the Town Attorney can correct me if I’m wrong, is even if
we get comments on December 1st that need to be addressed,
we imagine there will be far less of them than are
currently in the most recent draft matrix, and so that
would give an opportunity for the Council to… Even though
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it might not be the final version, they could be adopting a
Housing Element that is much more in substantial compliance
than the currently adopted one that was adopted in January.
I don't know if the Town Attorney has any additional
comments on that.
ATTORNEY WHELAN: No, but it looks like there’s a
question.
COMMISSIONER JANOFF: Are you saying that
Planning Commission could recommend to Council to adopt the
Housing Element November draft, and HCD comments coming to
Staff on December 1st could indicate additional work, and
Council could consider additional comments if Staff
provides responses to HCD on those?
JOEL PAULSON: No, it would have to go through
the same process, so Staff and the consultant would prepare
revisions to address those comments in the December 1st
letter, and then once those are prepared and completed they
would be circulated for the seven-day review period, then
we would come back to Planning Commission and you would
make a recommendation to Council, so it’s just an
additional cycle, but this could potentially provide some
benefit for a more substantially compliant Housing Element
being in place in that December timeframe, but ultimately
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obviously that’s a Planning Commission/Town Council
decision.
COMMISSIONER JANOFF: Just to make sure I’m
clear. There is no downside to recommending Council adopt,
because there are likely to be changes in more cycles. The
purpose for recommending adoption is in case HCD comes back
with you’re in compliance, then Council can go forward with
a formal adoption of a certifiable Housing Element.
ATTORNEY WHELAN: That’s a good summary of the
issue that’s before the Planning Commission.
CHAIR BARNETT: I have a question for Mr.
Paulson. If I heard you right you said that the latest
submissions did trigger a 60-day public comment period?
JOEL PAULSON: That’s technically correct,
however, our reviewer has provided this opportunity for
this interim where he provided the interim matrix, and so
he had previously committed—which we’re hoping he’s going
to stand by—that he will incorporate that into his December
1st letter, so that is our hope. Obviously we won’t know
until we see the letter on the 1st, but technically because
it is a formal submittal it does trigger a 60-day review,
however, that is not our understanding of how they’re going
to review this at this point.
CHAIR BARNETT: I see. Commissioner Janoff.
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COMMISSIONER JANOFF: I just want to make sure I
heard you correctly. It’s not a 60-day public review; it’s
a 60-day HCD review?
CHAIR BARNETT: I think I misspoke. Thank you.
COMMISSIONER JANOFF: Okay, thank you.
CHAIR BARNETT: Other comments? Let me make sure
I understand what’s being said so far, that if we were to
make a recommendation to the Town Council to approve the
November 16th and 27th submissions, that in the event HCD has
material changes to that it would of necessity come back to
the Planning Commission again.
JOEL PAULSON: That’s correct.
CHAIR BARNETT: In light of that, could we have a
motion? Commissioner Janoff.
COMMISSIONER JANOFF: In light of that, which is
pretty important, I think, I move to recommend that the
Planning Commission recommend the Town Council adopt the
Housing Element Draft that was officially submitted to them
on November 28, 2023.
JENNIFER ARMER: And if you could please
reference the resolution that was provided to you in the
addendum report?
ATTORNEY WHELAN: The motion would be to adopt a
resolution recommending approval.
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COMMISSIONER JANOFF: So stated.
VICE CHAIR RASPE: Through the Chair, do we have
to add a qualification then about the HCD’s response that
if they respond with further changes that will trigger some
further action as part of the motion?
JENNIFER ARMER: Staff would recommend that this
be a clean recommendation adoption of the resolution as
written with the understanding that if there are
significant comments that require additional revisions that
we would go through the required process.
VICE CHAIR RASPE: Thank you.
CHAIR BARNETT: Is Staff suggesting that we
specifically refer to the form of the resolution that was
included in the Staff packet?
JENNIFER ARMER: Yes, adoption of the resolution
that has been provided does include the specific references
to the November draft.
JOEL PAULSON: And for the record, that’s Exhibit
6, I believe.
CHAIR BARNETT: Does the maker of the motion
include that?
COMMISSIONER JANOFF: Yes, I think it has been
included, but thank you.
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CHAIR BARNETT: Thank you. Do we have a second?
Vice Chair Raspe.
VICE CHAIR RASPE: I’ll second the motion.
CHAIR BARNETT: Is there discussion? If not, I’ll
call the question. Those in favor, raise you hand. Oh, I’m
sorry. Commissioner Hanssen.
COMMISSIONER HANSSEN: I’m very uncomfortable
with this process. I think I’ve already said this, and I
was okay if we can make a recommendation subject to the HCD
approval, but I don’t think I’m okay with making a
recommendation on something when who knows what’s going to
happen on Friday, so I don’t know if I can vote for it.
CHAIR BARNETT: Commissioner Janoff.
COMMISSIONER JANOFF: Thank you. I think based on
what we just heard from Staff that we will have the
opportunity to see HCD comments if they are asking for
additional input from the Town, we’ll have that
opportunity. The recommendation effectively assumes HCD
comments… In order for the recommendation to go fully
forward to Council it presumes that the response on
December 1st will be a positive response, a you’re in
compliance response; that’s what it assumes.
I agree that the process is not ideal, it has
been confusing, and it is because we have this timeframe of
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Council meeting and it’s the end of the year and we have
limited meetings to go forward with this, and the noticing
challenges of having weeks in order to make sure that the
public is aware of what’s on Council agenda, really boxes
us in.
But as I said before, this recommendation to
adopt the resolution presumes HCD will be positive, because
we know that if HCD’s response on December 1st is send us
more information, then Council won’t… Well, I guess it
could still adopt the Housing Element knowing that there
would be more work to do and more cycles to go through, so
either way, it will come back to us if there’s more work to
be done, and I’m comfortable with that.
CHAIR BARNETT: Commissioner Burnett.
COMMISSIONER BURNETT: My comment is as it stands
now as a Planning Commissioner I cannot recommend and adopt
the adoption of the Draft Housing Element to Town Council.
To make a recommendation two days before we’re actually
receiving HCD’s letter on the October 2, 2023 Housing
Element version in my view would be sort of irresponsible,
and not being able to properly deliberate HCD’s comment
letter would be in my opinion a violation of the Planning
Commission’s fiduciary Duty of Care, so I would not be
supporting the motion.
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CHAIR BARNETT: Vice Chair Raspe.
VICE CHAIR RASPE: Thank you, Chair. My
viewpoint, I think, is largely in accordance with
Commissioner Janoff’s. I’m voting for what has been
submitted, was before us today, was submitted to HCD on the
28th; that’s what I think is encapsulated in our approval
this evening. We would know what that is, and my vote is
that I approve of that for Town Council. If HCD comes back
with further comments that’s not part of our approval, then
that becomes part of further discussion either through Town
Council or through Planning Commission, but as far as what
we’re approving this evening, at least with my vote, it
will be let’s present it to us and Staff tonight and what
has been transmitted to HCD as of yesterday; I’m
comfortable in that package. I’ll reserve further judgment
in the event that HCD comes back with anything but a
positive, and so I hope that clarifies my position.
CHAIR BARNETT: I share the feeling of my fellow
commissioners that we’ve been put in a very, very difficult
position tonight. It echoes back to the meeting on the 15th
when we were presented the next morning with an entirely
new package and matrix. It’s good that we’re making
progress on these issues, but I think the public
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perception, partly of which we’ve heard tonight, is that
there is some chaos in the process.
I’m sympathetic to those who are against the
motion, because it demonstrates to the public that we are
inserting a more deliberate and focused consideration of
the issues rather than presenting the scenario where HCD
comes back with something negative in two days and then
we’ll have to revisit, where as today we’re seeming to
approve it. That doesn’t sit well with me in terms of
public relations.
But as a practical matter, I think that the
motion makes complete sense. I think that there’s no reason
to delay. There is some certain interest that we have in
preventing more Builder’s Remedy applications; we already
have plenty of those, so I would be in support of the
motion, and if there are no other comments we’ll take the
roll. Commissioner Hanssen.
COMMISSIONER HANSSEN: Is it okay to ask more
questions? There’s a letter in the Desk Item from the Los
Gatos Community Alliance in which they made several
recommendations, and one of them was partially cited by
Commissioner Burnett, saying it would be irresponsible and
a violation of the Planning Commission’s fiduciary Duty of
Care to make any recommendation to the Town Council prior
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to receiving and properly deliberating HCD’s comment letter
on the October 2, 2023 version since the new letter is
expected two days after the meeting, and they go on to say
they feel that it was a mistake that we made the
recommendation on January 11th, and so on and so forth.
They made several recommendations in there, and
while Staff did respond to the comments from their letter
on the 27th, there was no time to comment on this because it
came in the Desk Item. What is Staff’s opinion on this
statement that it’s an irresponsible violation of our
fiduciary Duty of Care to make this recommendation?
ATTORNEY WHELAN: From my perspective the
Planning Commission is being asked to decide whether the
revised Draft Housing Element that’s been presented to the
Planning Commission substantially complies with all the
government code requirements, and so if a Planning
Commissioner is able to make a decision that it does, then
that’s not a violation of the Planning Commissioner’s
fiduciary duty.
COMMISSIONER HANSSEN: Okay.
CHAIR BARNETT: We still have a motion on the
table. Does the resolution that is on the table for
approval include the findings in terms of compliance on all
Housing Element requirements?
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ATTORNEY WHELAN: Yes.
CHAIR BARNETT: Okay, I thought so. Any further
discussion? Commissioner Hanssen.
COMMISSIONER HANSSEN: I have one other question.
I do appreciate all the analysis that Staff has done; I
want to make sure I say that. The response in the matrix is
excellent, it looks to me like everything is covered, and
then there was the statement that was submitted a couple of
days ago from Staff about all the things with the State
law, but the problem that I have with that is it’s coming
from us relative to our work versus HCD, which has been
holding this over not just our heads, but over other
jurisdiction’s heads. So we can say it’s in substantial
compliance based on our opinion, but it’s really HCD that’s
going to make the ultimate recommendation, so it seems like
a hollow kind of recommendation, because we have these
charts that are coming from us, not from HCD.
CHAIR BARNETT: Commissioner Janoff.
COMMISSIONER JANOFF: While it’s true that the
matrix has been prepared by Staff, it’s been deeply
informed by our expert consultant, and so I do respect that
the work of Ms. Tam and her team is foundationally aware
and informed of these metrics of compliance, and I’m
comfortable that that oversight that the compliance matrix
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has presented—which is excellent by the way, it’s exactly
what I was hoping to see—satisfies for me that the document
is in substantial compliance, and not just because it’s
been self-developed, but it has had external review.
CHAIR BARNETT: Thank you. Other discussion? I
don’t see anything, so I’m going to call the question on
the motion. Those in favor, raise your hand, please. And
those against? So the motion passes 5-1.
JENNIFER ARMER: The vote was 4-1, for the
record, with Commissioner Burnett voting no.
CHAIR BARNETT: Thank you. That’s not the first
time I’ve miscounted.
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