15 Attachment 15 - Public Comment Received Between 1101 a.m. Thursday December 14, 2023, and 1100 a.m., Tuesday, December 19, 2023From: <>
Sent: Monday, December 18, 2023 12:21 PM
To: Mary Badame <MBadame@losgatosca.gov>; Matthew Hudes <MHudes@losgatosca.gov>; Rob
Rennie <RRennie@losgatosca.gov>; Rob Moore <RMoore@losgatosca.gov>; Maria Ristow
<MRistow@losgatosca.gov>
Cc: Town Manager <Manager@losgatosca.gov>; Gabrielle Whelan <GWhelan@losgatosca.gov>; Wendy
Wood <WWood@losgatosca.gov>; Joel Paulson <jpaulson@losgatosca.gov>; Phil Koen
<>; David Weissman <>; Rick Van Hoesen
<>; Paul Mcdougal@hcd.ca.gov <paul.mcdougall@hcd.ca.gov>; Jose Jauregui
<Jose.Jauregui@hcd.ca.gov>
Subject: Item 15 - Desk Item for Council meeting 12-19-23
[EXTERNAL SENDER]
December 18, 2023
RE: Agenda item 15 – Town Council Meeting December 19, 2023
Dear Town Council,
The staff report for Agenda Item 15 is inaccurate in that it fails to disclose that on November 16, 2023
Staff submitted a November draft of the revised Housing Element to HCD for official review in violation
of Government Code Section 65585. We find it hard to understand why Staff would intentionally not
disclose this.
In our opinion, the lack of transparency and full disclosure has been a consistent theme for the past two
years, spanning the development of the Housing Element. The cumulative effect of this behavior has led
to a growing loss of confidence in Staff and the Town’s latest consultant, Veronica Tam, by the public.
The current process needs to be overhauled beginning with the Town Council taking direct control over
the development of the Housing Element. For too long the Town Council has delegated its legal
responsibility for the development of the Housing Element to Staff and a dizzying number of
consultants.
This process has resulted in the Town failing to meet the statutory deadline of Housing Element
certification by January 31, 2023, the spending of over $300,000 in consulting fees, the submission of 5
draft Housing Elements, all of which have been rejected by HCD, and the filing of numerous Builder’s
Remedy development applications as a result of non-certification, which include a 7 story building on
the site of the current post office.
Furthermore, we are concerned that certain members of the Town Council have publicly blamed HCD
for the Town’s failure to obtain certification, claiming HCD has “moved the goal posts on us.” We do not
subscribe to this view and see this as an attempt to whitewash the process and deflect accountability
ATTACHMENT 15
away from the very body that is accountable – namely our elected Town Council and the Town Staff that
works for them. We believe all of this is self-inflicted, as demonstrated by the latest stunt of
intentionally violating the public comment requirements of Government Code Section 65585 and AB
215. We will now detail what happened.
Legal Background
Government Code Section 65585(b)(3) requires, “For any subsequent draft revision, the local
government shall post the draft revision on its website and shall email a link to the draft revision to all
individuals and organizations that have previously requested notices relating to the local government’s
housing element at least seven days before submitting the draft revision to the department.”
In addition, in every comment letter HCD has provided the Town, they have included a “Public
Participation” paragraph that specifically discussed the importance of public participation in the
development of the Housing Element and noted the requirement of an advance seven-day review
period for the public. The Town and the Town’s consultant, Veronica Tam were fully aware of the
Town’s legal obligation under this government code section and AB 215.
Timeline
• On November 15, 2023, the Planning Commission reviewed a “matrix” provided by HCD and
augmented by Town Staff and continued the meeting until November 29th
• Staff and the Town Consultant did not at that time disclose their intention to submit a revised draft
of the Housing Element to HCD the very next day.
• On November 16, 2023, Staff submitted to HCD a massive re-write of the September draft of the
revised Housing Element that had been submitted to HCD for the mandatory 60-day review period
on October 2, 2023. The cover letter (attachment 1) stated the Town is transmitting a “draft revised
2023-2031 Housing Element,” and is requesting HCD’s review and feedback, “that would assist the
Town… to bring the Housing Element into a compliance status by or before the end of the 60-day
review period (e.g., December 1, 2023).”
• No one in the public was aware of this submission. It is unclear if anyone on the Town Council was
aware of this submission.
• On November 19, 2023, LGCA wrote a letter to the Town Manager stating that LGCA has been made
aware of the November 16 submission and reminding the Town Manager of Government Code
Section 65585 and attached the government code section.
• On November 20, 2023, LGCA received an email from the Town Attorney (attachment 2) confirming
government code section 65585 applies and stated, “Town staff will be contacting HCD to ask HCD
to consider the date of submittal to be November 27th rather than November 17th ”.
• On November 20, 2023, LGCA sent an email to the Town Attorney (attachment 2), among
other items, pointing out the importance of the public comment period and the Town’s
requirement to consider the public comments before submitting a draft to HCD.
• On November 21, 2023, LGCA received an email from the Town Attorney (attachment 2),
now claiming the November 16th submittal, “was not the Town’s submittal of a revised draft
Housing Element”.
• The email also stated, “staff had not drafted the revisions at the time of the November 15 th
Planning Commission meeting so the matrix that was provided stated the revisions were in
progress”. Essentially this email claimed that the Staff didn’t know about the fact that they would be
submitting a significant rewrite of the Housing Element the very next day, so how could they be
expected to disclose it to the Planning Commission or the public? This speaks for itself and
illustrates the point regarding the lack of transparency and full disclosure.
• On November 21, 2023, LGCA replied to the Town Attorney’s email (attachment 2) pointing
out numerous inconsistencies with the Town Attorney’s email and requested the Town to
notify HCD immediately of the failure to comply with government code section 65580 and to rescind
the November 16th submittal.
• On November 28, 2023, the Town transmitted a “resubmittal” of a draft revised 2023-2031 Housing
Element. The cover letter stated the Town had complied with government code section 65585 and
the “draft housing element was posted November 16 th , 2023” on the Town’s website “consistent
with AB 215 requirements”.
• The Staff dismissed out of hand all comments it had received from LGCA [and others?] and simply
submitted the same draft that was submitted to HCD on November 16 th . The very same draft that
the Town Attorney previously claimed in her email of November 21 was not a revised draft of the
Housing Element.
Conclusion
It is deeply troubling that Staff has failed to disclose these events and be fully transparent in its
Staff Report to the Town Council. Furthermore, we remain concerned Staff does not fully understand
the requirement under Government Code Section 65585. The code requires, “for any subsequent draft
revision,” there is a mandatory 7-day public review period prior to submitting a draft to HCD. The
Staff seems to draw a distinction between a “formal submittal,” versus some other type of submittal. To
be clear, there is no other type of submittal, and all submittals fall under the purview of Government
Code Section 65585.
This Council has a mess on its hands. We truly hope for all our sakes that the Council takes control
over this process going forward, including reviewing, and approving all subsequent Housing Element
Drafts prior to submission to HCD.
At the end of the day, we all want the same goal – a timely certification of the Town’s 2023 –
2031 Housing Element that fully complies with State Housing Element Law.
Los Gatos Community Alliance
Facts Matter; Transparency Matters; Honesty Matters
www.lgca.town
Jak@lgca.town
as made clear on the same web page, "any revisions received during the course of
HCD's review are also subject to the seven-day posting requirement prior to
submittal to HCD" (emphasis added).
The requirement to conduct the seven-day public comment period prior to
submittal is essential to the public comment process. It is the only way for the public
to comment on the document and, if appropriate, for the Town to incorporate such
comments into the document prior to its submission to HCD. The intent of the public
comment period is not (only) to provide the public's comments to HCD, but also for
those comments to be provided to the Town for possible revisions to the
document before it is submitted to HCD. The course of action adopted thus far by
the Town to, "ask HCD to consider the date of submittal to be November 27th,"
makes a sham of the public comment process. In essence it presupposes that the
document will not be changed as the result of any public comments because the
already-submitted document would automatically be re-submitted on the same day
the public comment period ends.
Accordingly, we again request that the Town notify HCD it is rescinding the
November 16 submittal and (presumably) that the Town intends to make a submittal
after the public comment period has lapsed and the Town has had an opportunity to
receive and consider any public comments and, if appropriate, to incorporate public
feedback into the draft HE. At a minimum, this will enable the Town to include any
public comments along with the submittal at the time it is submitted.
We understand that the Town is behind where it wants to be with respect adopting
its new Housing Element. That unfortunate result was set in motion many months
ago when the Town Staff elected to focus their efforts on a new General Plan before
a Housing Element was formulated, much less adopted. But shortcutting the
process in pursuit of a quick result cannot trump the laws and regulations that
govern the process.
Also, in our LGCA letter two days ago to Ms. Prevetti (the letter you responded to)
we asked that a copy of the cover letter accompanying the November 16 submittal
be provided. We still have not received that letter. I have since filed a public records
request with the Town requesting that letter, but would appreciate it if you could
provide it as soon as possible.
Finally, the claim that, “Staff had not drafted the revisions at the time of the 11/15
Planning Commission meeting,” strains credulity – at least as formulated. The sheer
number and bulk of redlines in the draft that was submitted to HCD the day after the
Planning Commission meeting simply would not have been possible to draft in less
than 24 hours. Might it be more accurate to say that Staff had not finalized the
drafting of the revisions at the time of the Planning Commission meeting? Either
way, the question remains as to why it was not disclosed to the PC – and the public
– at that meeting that a submittal was to be made the very next day.
Thank you.
meetings. The Planning Commission meeting is scheduled for 11/29 and the
Town Council meeting has not yet been scheduled. Only after the Town
Council has received a recommendation from the Planning Commission and
held its public hearing will a revised draft Housing Element be adopted and
submitted to HCD for certification.
2. Originally, HCD stated that they would not be able to provide the Town with
mid-review cycle comments on the 10/2 submission. On October 31st
(correction: not November 7th as indicated in my original email below), the
Town’s HCD reviewer told the Town that he would be able to meet with Town
staff to provide mid-review cycle comments and scheduled a meeting for
11/7 (correction: not 11/14 indicated in my original email below). The 11/15
Planning Commission was noticed before the Town knew that HCD would in
fact be able to meet with the Town to provide mid-review cycle comments.
As a result, the 11/15 Planning Commission meeting was used to discuss the
mid-review cycle comments from HCD and the Planning Commission
continued its meeting to 11/29. Staff had not drafted the revisions at the
time of the 11/15 Planning Commission meeting so the matrix that was
provided stated that the revisions were in progress. The proposed revisions
were completed and posted on 11/16 (correction: not 11/17 as indicated in
my original email below).
3. The purpose of the proposed schedule is intended to obtain HCD
certification of an amended Housing Element as soon as possible. State law
requires that the Planning Commission make a recommendation to the Town
Council on adoption. November 29th is the last date on which the Planning
Commission can make a recommendation and staff can notice a Town
Council meeting in 2023. If the Planning Commission makes its
recommendation after December 1st, the Town Council will vote on the
Housing Element mid-January. With the proposed schedule, the Town
Council will have the benefit of HCD’s 12/1 letter prior to adoption.
Please let me know if you have other questions or would like to meet. Thank you.
CONFIDENTIAL/ATTORNEY-CLIENT PRIVILEGED
Gabrielle Whelan ● Town Attorney
Town Attorney’s Office ● 110 E Main Street, Los Gatos, CA 95030
Desk: 408.354.6818 ● gwhelan@losgatosca.gov
www.losgatosca.gov ● https://www.facebook.com/losgatosca
From: Rick Van Hoesen <>
Sent: Monday, November 20, 2023 4:38 PM
To: Gabrielle Whelan <GWhelan@losgatosca.gov>
Cc: ; Laurel Prevetti <LPrevetti@losgatosca.gov>; Joel
Paulson <jpaulson@losgatosca.gov>; Wendy Wood
<WWood@losgatosca.gov>; jose.jauregui@hcd.ca.gov;
paul.mcdougall@hcd.ca.gov; Phil Koen <>;
Maria Ristow <MRistow@losgatosca.gov>; Mary Badame
<MBadame@losgatosca.gov>; Matthew Hudes <MHudes@losgatosca.gov>;
Rob Moore <RMoore@losgatosca.gov>; Rob Rennie
<RRennie@losgatosca.gov>
Subject: Re: Town of Los Gatos Housing Element
[EXTERNAL SENDER]
Hello Ms. Whelan,
Thank you for your reply.
Yes, the Los Gatos Community Association (LGCA) does have several
questions (more may follow).
1. As we know, an important purpose of the public comment period is to
provide the public with advance notice of the proposed draft housing
element and to give the public the ability to provide comments on the
proposed filing. Equally importantly, the public comment process gives
the Town the opportunity to consider and, when appropriate, to
incorporate those comments into its Housing Element before the HE is
filed with HCD. As a community organization planning to make
comments on the draft Housing Element, LGCA is greatly concerned
that there is no process for such comments to be considered by the
Town and incorporated into the draft. It creates the impression that the
public comment process is for appearances only, and is simply being
given lip service by the Town in an attempt to technically satisfy the
public comment period without actually considering or incorporating any
resulting comments. Therefore would you please describe how the
process you have outlined (changing the date of submittal for the
already-submitted revised Housing Element draft to November 27)
provides the ability for Town to receive and consider public comments
and then, when appropriate, incorporate any changes resulting from
those comments into the draft submittal?
2. While we did not actually ask the second question you posit (namely,
why were the most recent HE revisions not taken to the HEAB), we
nonetheless wonder how the sequence of events occurred on November
15 and 16. The Planning Commission met on November 15 with the
agenda item, "Consider and Make a Recommendation to the Town
Council on the Draft Revised 2023-2031 Housing Element." During that
meeting it appears that there was discussion of the, "mid-review cycle
recommendations from HCD that were received on November 14th."
And yet to all outward appearances the Planning Commission was not
aware of (and in any event did not publicly discuss) the draft Housing
Element that the Town staff was to submit the very next day - at least in
part in response to those same "mid-review cycle recommendations."
Why was the Planning Commission (and the public) not made aware at
that meeting that the very next day a draft Housing Element was to be
filed by Town Staff in response to the HCD mid-cycle recommendations
that were discussed at that meeting?
3. Of course it is known by the Town that HCD is to provide its comment
letter on the September draft Housing Element on or before December 1.
Knowing that, why would the Town propose to submit yet another draft
HE on November 27, just 4 days before the latest date it is to receive
HCD's comments? Further, why would the Planning Commission
propose to make a recommendation to the Town Council on November
29, just 2 days before that date? Why not wait to receive HCD's letter on
or before December 1 and make all the recommendations and submittals
with full knowledge of HCD's latest comments?
Thank you.
Rick Van Hoesen & Jak Van Nada
On Mon, Nov 20, 2023 at 3:13 PM Gabrielle Whelan
<GWhelan@losgatosca.gov> wrote:
Dear Mr. Van Hoesen and Mr. Van Nada:
Thank you for your November 19th letter regarding the revised draft Housing
Element. I have reviewed Government Code Section 65585(b) and it does
provide that a seven-day public review period is required before a draft revision
to the Housing Element is sent to HCD. Accordingly, Town staff will be
contacting HCD to ask HCD to consider the date of submittal to be November
27th rather than November 17th. This will provide the public with an opportunity
to provide written comment for a seven-day period plus a buffer for the
Thanksgiving holiday. Town staff will also update the Town’s Housing Element
web page with this information. As you may know, the draft revised Housing
Element will be coming to the Planning Commission for consideration on
November 29th. At that meeting, staff will be asking the Planning Commission to
make a recommendation regarding adoption of the revised draft Housing
Element.
You also asked why the most recent revisions made in response to HCD’s mid-
review cycle comments were not taken to the Housing Element Advisory Board
(“HEAB”) for a recommendation to the Planning Commission. The HEAB did
review previous drafts of the Housing Element. Most recently, the HEAB made a
recommendation to the Planning Commission and Town Council before the
Town’s October 2nd submittal to HCD. The November proposed revisions were
made in response to mid-review cycle recommendations from HCD that were
received on November 14th. Given the interest in adopting, and obtaining
certification of, the revised draft Housing Element in a timely manner, it is not
practical to return to the HEAB every time revisions are proposed.
Please let me know if you have any follow-up questions.
Gabrielle Whelan ● Town Attorney
Town Attorney’s Office ● 110 E Main Street, Los Gatos, CA 95030
Desk: 408.354.6818 ● gwhelan@losgatosca.gov
www.losgatosca.gov ● https://www.facebook.com/losgatosca