12 Staff Report.HEOZ Amendment with attachments
PREPARED BY: Jocelyn Shoopman, Associate Planner and
Erin Walters, Associate Planner
Reviewed by: Town Manager, Community Development Director, Planning Manager, and Town
Attorney
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6872
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 02/20/2024 ITEM NO: 12
DATE: February 15, 2024
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Approve a Recommendation of the Planning Commission to Introduce an
Ordinance Titled “An Ordinance of the Town Council of the Town of Los Gatos
Amending Chapter 29, ‘Zoning Regulations,’ of the Town Code to Define ‘By
Right Approvals’ and Amend the Housing Element Overlay Zone (HEOZ),
Division 5 of Article VIII, ‘Overlay Zones and Historic Preservation,’” to Clarify
Regulations Applicable to “By Right” and “Non By Right” Residential
Development in the Housing Element Overlay Zone. An Environmental Impact
Report (EIR) was Prepared and Certified for the 2040 General Plan Update on
June 30, 2022. No further Environmental Analysis is Required. Zoning Code
Amendment Application Z-24-001. APPLICANT: Town of Los Gatos. PROJECT
PLANNERS: Jocelyn Shoopman and Erin Walters.
RECOMMENDATION:
Approve a recommendation of the Planning Commission to introduce to Introduce an
Ordinance titled “An Ordinance of the Town Council of the Town of Los Gatos Amending
Chapter 29, ‘Zoning Regulations,’ of the Town Code to Define ‘By Right Approvals’ and Amend
the Housing Element Overlay Zone (HEOZ), Division 5 of Article VIII, ‘Overlay Zones and Historic
Preservation,’” to Clarify Regulations Applicable to “By Right” and “Non By Right” Residential
Development in the Housing Element Overlay Zone (Attachment 2).
BACKGROUND:
The Town of Los Gatos is required to prepare an updated Housing Element for the period
covering 2023-2031 that is certified by the State Housing Community Development Department
(HCD). The Housing Element is one of nine State-mandated elements that must be included in
every General Plan. The Housing Element assesses housing needs for all income groups within
PAGE 2 of 3 SUBJECT: Housing Element Overlay Zone/Z-24-001 DATE: February 15, 2024
BACKGROUND (continued):
the community and identifies implementation programs to meet those housing needs. Unlike
other General Plan elements, the Housing Element must be updated every eight years, rather
than every 10 to 20 years, must address statutory requirements regarding its content, and is
subject to mandatory review by HCD. The Town’s Regional Housing Needs Allocation (RHNA)
for the sixth cycle planning period is 1,993 units.
The Town of Los Gatos 2023-2031 Housing Element identifies amending the Town Code to
create the HEOZ as a strategy to accommodate the Town’s RHNA.
On November 21, 2023, the Town Council adopted Ordinance No. 2347 to enact the proposed
Town Code amendments to modify the Affordable Housing Overlay Zone (AHOZ) to become the
HEOZ (Attachment 1).
On December 1, 2023, the Town received the HCD findings/comment letter on the Town’s Draft
Revised Housing Element as submitted to HCD, including a preliminary review of the adopted
HEOZ Ordinance. The comment letter recommended additional amendments. The letter is
available on the Town’s Housing Element webpage:
https://www.losgatosca.gov/HousingElement
On January 24, 2024, the Planning Commission met to discuss the amendments proposed in
response to the HCD comments. The Planning Commission received and considered public
comments on the proposed amendments, reviewed the proposed language, and unanimously
recommended approval to Town Council with the single modification of “at the density ranges
specified in Table 1-A” to “within the density ranges specified in Table 1-A in Section 29.80.510
(a)” (Attachments 3 and 4).
DISCUSSION:
The Town has received comments from HCD requiring amendments to the Town’s adopted
HEOZ Ordinance to include by right approval requirements pursuant to Government Code
section 65583.2, subdivision (h) and (i), as well as the minimum density requirements of
Government Code section 65583.2, subdivision (h).
Staff, with the assistance from the Town’s outside legal counsel, Goldfarb and Lipman LLP, and
the Town’s Housing Consultant, Veronica Tam and Associates, have prepared an amended
ordinance (Attachment 2) to address HCD’s comments, as described in Attachment 3.
The proposed amended ordinance in Attachment 2 includes a definition of “By Right Approval”
from the State Government Code. The amended Ordinance also provides clarification on which
regulations apply to “By Right” and “Non By Right” residential development in the HEOZ.
PAGE 3 of 3 SUBJECT: Housing Element Overlay Zone/Z-24-001 DATE: February 15, 2024
DISCUSSION (continued):
The Town’s HCD reviewer has reviewed the proposed language, asked clarifying questions of
staff, and staff provided HCD answers. The Town’s HCD reviewer responded with an email
thanking staff for the clarifications.
PUBLIC COMMENTS:
Public notification has included a legal advertisement in the paper. The meeting has also been
publicized on the Town’s website and through the Town’s social media platforms. As of the
drafting of this report, no comments from the public have been received.
CONCLUSION:
Staff recommends that the Council introduce an Ordinance titled “An Ordinance of the Town
Council of the Town of Los Gatos Amending Chapter 29, ‘Zoning Regulations,’ of the Town Code
to Define ‘By Right Approvals’ and Amend the Housing Element Overlay Zone (HEOZ), Division 5
of Article VIII, ‘Overlay Zones and Historic Preservation’” to clarify which regulations apply to
“By Right” and “Non By Right” residential development in the HEOZ (Attachment 2) with any
specific changes identified and agreed upon by the majority of the Town Council.
Alternatively, the Council may:
1. Continue this item to a date certain with specific direction to staff; or
2. Refer the item back to the Planning Commission with specific direction.
Attachments:
1. Ordinance 2347
2. Draft Ordinance
3. January 24, 2024, Planning Commission Staff Report with Exhibits 1-2
4. January 24, 2024, Planning Commission Verbatim Minutes
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ATTACHMENT 1
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HEOZ Ordinance February 20, 2024
DRAFT ORDINANCE
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
AMENDING CHAPTER 29, “ZONING REGULATIONS,” OF THE TOWN CODE
TO DEFINE “BY RIGHT APPROVALS” AND AMEND THE HOUSING ELEMENT
OVERLAY ZONE (HEOZ), DIVISION 5 OF ARTICLE VIII, “OVERLAY ZONES AND HISTORIC PRESERVATION” ZONING CODE AMENDMENT APPLICATION Z-24-001 PROPERTY LOCATION: TOWN WIDE APPLICANT: TOWN OF LOS GATOS
WHEREAS, the Town of Los Gatos 2023-2031 Housing Element identifies amending the
Town Code to create the Housing Element Overlay Zone as a strategy to accommodate the
Town’s Regional Housing Needs Allocation (RHNA); and
WHEREAS, the Planning Commission at its meeting on August 23, 2023, reviewed the
proposed Town Code amendments, held a public hearing, and forwarded a recommendation of
approval to the Town Council; and
WHEREAS, on October 3, 2023, the Town Council accepted the report of the Planning
Commission’s recommendation of approval for the proposed Town Code amendment, held a
public hearing, and continued to the matter to November 7, 2023; and
WHEREAS, on November 7, 2023, the Town Council reviewed the proposed Town Code
amendments, held a public hearing, and introduced the ordinance to amend the Town Code to
modify the Affordable Housing Overlay Zone to be the Housing Element Overlay Zone; and
WHEREAS, on November 21, 2023, the Town Council adopted Ordinance No. 2347 to
enact the proposed Town Code amendments; and
WHEREAS, on December 1, 2023, the Town received comments from the State Housing
and Community Development Department (HCD) regarding the adopted Housing Element
Overlay Zone ordinance; and
WHEREAS, staff has prepared a revised ordinance to address HCD’s comments; and
WHEREAS, the Planning Commission at its meeting on January 24, 2024, reviewed
proposed Town Code amendments, held a public hearing, and forwarded a recommendation of
approval to the Town Council; and
WHEREAS, this matter was regularly noticed in conformance with State and Town law
Draft Ordinance: Subject to
modification by Town Council based
on deliberations and direction.
ATTACHMENT 2
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HEOZ Ordinance February 20, 2024
and came before the Town Council on February 20, 2024.
WHEREAS, on February 20, 2024, the Town Council accepted the report of the Planning
Commission’s recommendation of approval for the proposed Town Code amendments, held a
public hearing, and introduced an ordinance to add a definition of “by right approval” and
modify the HEOZ Ordinance; and
NOW, THEREFORE, BE IT ORDAINED by the Town Council of the Town of Los Gatos as
follows:
SECTION I. Section 29.10.020, “Definitions,” of Chapter 29, “Zoning Regulations,” of the Town
Code is amended to add the following between the definitions of “Business or commerce” and
“Carport” to read as follows:
By right approval shall have the meaning set forth in Government Code Section 65583.2 (i).
SECTION II. Division 5 of Article VIII, “Overlay Zones and Historic Preservation,” of Chapter 29,
“Zoning Regulations,” is amended to read as follows:
ARTICLE VIII. OVERLAY ZONES AND HISTORIC PRESERVATION
…
DIVISION 5. HOUSING ELEMENT OVERLAY ZONE
Sec. 29.80.505. Intent.
The Housing Element Overlay Zone (HEOZ) ordinance in this division is intended to
increase the supply and the mix of housing types, tenure, and affordability within the Town of
Los Gatos. Through appropriate densities, concessions, and fee deferrals or waivers, the HEOZ
encourages the development of housing affordable to all income levels on sites within the
Town that are deemed to be most appropriate for such uses. The Housing Element lists sites
within the Town of Los Gatos as key housing opportunities. The designation of these sites will
assist the Town in meeting its Regional Housing Needs Allocation (RHNA), as required by the
State.
Sec. 29.80.510. HEOZ and underlying zoning.
(a) “By right” residential developments on sites with underlying zoning of RM, CH, or NF-SP
(Table 1A below). Pursuant to Government Code Section 65583.2, subsections (h) and
(i), in the HEOZ, residential developments with at least 20 percent of the units proposed
for “low income” households and without a subdivision are subject to “by right
approval.” These developments are subject to the following:
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HEOZ Ordinance February 20, 2024
1. The developments must be developed at within the densityies ranges specified in
Table 1A below and in no event shall any residential development projects be
developed below the minimum density of 30 units per acre.
2. The developments shall be subject to non-discretionary design review based on
objective development standards in accordance with the procedures specified in
Article II, "Administration and Enforcement,” of Chapter 29, “Zoning Regulations,” of
the Town Code.
3. No California Environmental Quality Act review shall be required.
4. Subdivisions remain subject to all applicable state and local laws, including but not
limited to the Subdivision Map Act.
5. Residential units shall occupy at least 50 percent of the floor area in all mixed-use
projects.
6. For residential developments and mixed-use projects, the standards set forth in
Table 1A shall apply.
Table 1A HEOZ Development Standards for “By Right” Residential Development
General Plan
Land Use
Designation
Zoning Minimum Yards Maximum
Lot
Coverage
Maximum
Floor Area
Ratio (FAR)
Maximum
Height
Limit (ft)
Density
Units Per Acre
High Density
Residential
R-M As authorized by
Section 29.40.645
75% N/A 45 feet 30-40
Mixed-Use CH As authorized by
Section 29.60.435
N/A 3.0 45 feet 30-40
North Forty
Specific Plan
NF-SP As defined in
Specific Plan
As defined
in Specific
Plan
As defined
in Specific
Plan
As defined
in Specific
Plan
30-40
(b) For all other residential developments other than those described in subsection (a), the
standards set forth in Table 1B below shall apply.
Table 1B HEOZ Development Standards for Other Residential Development
General Plan
Land Use
Designation
Zoning Minimum Yards Maximum
Lot
Coverage
Maximum
Floor Area
Ratio (FAR)
Maximum
Height
Limit (ft)
Density
Units Per Acre
Low Density
Residential R-1 As authorized by
Section 29.40.405
50% N/A 30 feet 0-5
Medium Density
Residential
R-1D, R-D,
and R-M
As authorized by
Section 29.40.405,
29.40.530, and
29.40.645
75% N/A 35 feet 14-22 or 5-12
in Very High
Fire Hazard
Severity Zones
Neighborhood
Commercial
C-1 As authorized by
Section 29.60.225
N/A 1.0 35 feet 10-20
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HEOZ Ordinance February 20, 2024
Central Business
District
C-2 As authorized by
Section 29.60.335
N/A 2.0 45 feet 20-30
Office
Professional
O As authorized by
Section 29.60.100
N/A 1.0 35 feet 10-20
(c) The underlying zoning development standards will remain in effect for all other
development without a residential component.
(d) Regardless of the underlying zoning designation, no residential use may be developed
that does not meet the applicable HEOZ development standards.
(e) Where standards are not specified, the development standards provided in the
underlying zoning district shall apply.
SECTION III. CEQA.
The Town Council finds as follows:
A. No further Environmental Analysis is required as an Environmental Impact Report (EIR) was
prepared and certified for the 2040 General Plan Update on June 30, 2022, which included the
proposed Town Code amendments; and
B. The Town Code amendments are consistent with the General Plan and its elements; and
C. That all proceedings have been conducted in compliance with the provisions of Government
Code Section 65850 et seq.
SECTION IV. EFFECTIVE DATE.
This Ordinance was introduced at a regular meeting of the Town Council of the Town of
Los Gatos on the 20th day of February 2024, and adopted by the following vote as an ordinance
of the Town of Los Gatos at a regular meeting of the Town Council of the Town of Los Gatos on
the ____ day of ___________, 2024. This ordinance shall take effect 30 days after the date it is
adopted. The Town Clerk shall cause this ordinance or a summary thereof to be published in
accordance with Section 36933 of the California Government Code.
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HEOZ Ordinance February 20, 2024
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE: __________________
ATTEST:
TOWN CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE: ________________
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PREPARED BY: Jocelyn Shoopman and Erin Walters
Associate Planner and Associate Planner
Reviewed by: Community Development Director, Planning Manager, and Town Attorney
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6872
www.losgatosca.gov
TOWN OF LOS GATOS
PLANNING COMMISSION
REPORT
MEETING DATE: 01/24/2024
ITEM NO: 3
DATE: January 19, 2024
TO: Planning Commission
FROM: Joel Paulson, Community Development Director
SUBJECT: Consider a Request to Further Amend Chapter 29 of the Town Code to Define
“By Right Approvals” and Amend the Housing Element Overlay Zone as
Division 5 of Article VIII, “Overlay Zones and Historic Preservation.” An
Environmental Impact Report (EIR) was Prepared and Certified for the 2040
General Plan Update on June 30, 2022. No further Environmental Analysis is
Required. Zoning Code Amendment Application Z-24-001. Project Location:
Town Wide. Applicant: Town of Los Gatos.
RECOMMENDATION:
Forward a recommendation of approval to the Town Council to further amend Chapter 29 of
the Town Code to define “By Right Approvals” and amend the Housing Element Overlay Zone
(HEOZ) as Division 5 of Article VIII, “Overlay Zones and Historic Preservation.”
BACKGROUND:
The Town of Los Gatos is required to prepare an updated Housing Element for the period
covering 2023-2031 that is certified by the State Housing Community Development Department
(HCD). The Housing Element is one of nine State-mandated elements that must be included in
every General Plan. The Housing Element assesses housing needs for all income groups within
the community and identifies implementation programs to meet those housing needs. Unlike
other General Plan elements, the Housing Element must be updated every eight years, rather
than every 10 to 20 years, must address statutory requirements regarding its content, and is
subject to mandatory review by HCD. The Town’s Regional Housing Needs Allocation (RHNA)
for the sixth cycle planning period is 1,993 units.
The Town of Los Gatos 2023-2031 Housing Element identifies amending the Town Code to
create the HEOZ as a strategy to accommodate the Town’s Regional Housing Needs Allocation
(RHNA).
ATTACHMENT 3
PAGE 2 of 5
SUBJECT: Housing Element Overlay Zone/Z-24-001
DATE: January 19, 2024
BACKGROUND (continued):
On August 23, 2023, the Planning Commission reviewed the proposed Town Code
amendments, held a public hearing, and forwarded a recommendation of approval to the Town
Council to modify the Affordable Housing Overlay Zone (AHOZ) to be the HEOZ.
On October 3, 2023, the Town Council accepted the report of the Planning Commission’s
recommendation of approval for the proposed Town Code amendment and held a public
hearing.
On November 7, 2023, the Town Council, reviewed the proposed Town Code amendments,
held a public hearing, and introduced the ordinance to amend the Town Code.
On November 21, 2023, the Town Council adopted Ordinance No. 2347 to enact the proposed
Town Code amendments (Exhibit 1).
On December 1, 2023, the Town received the HCD findings/comment letter on the Town’s Draft
Revised Housing Element as submitted to HCD, including a cursory review of the adopted HEOZ
ordinance. The letter is available on the Town’s Housing Element webpage:
https://www.losgatosca.gov/HousingElement
DISCUSSION:
A. Zoning Amendments
The Town has received comments from HCD requiring amendments to the Town’s adopted
HEOZ ordinance to include by right approval requirements pursuant to Government Code
section 65583.2, subdivision (h) and (i), as well as the minimum density requirements of
Government Code section 65583.2, subdivision (h).
Staff, with the assistance from the Town’s outside legal counsel, Goldfarb and Lipman LLP,
and the Town’s Housing Consultant, Veronica Tam and Associates, have prepared an
amended ordinance (Exhibit 2) to address HCD’s comments.
B. Add “By Right Approval” Definition
The definition of “By Right Approval” below will be added to Section 29.10.2020,
“Definitions,” of Chapter 29, “Zoning Code Regulations,” of the Town Code:
By right approval shall have the meaning set forth in Government Code Section 65583.2
(i).
PAGE 3 of 5
SUBJECT: Housing Element Overlay Zone/Z-24-001
DATE: January 19, 2024
DISCUSSION (continued):
Government Code Section 65583.2 (i) defines “By Right Approval” as the following:
For purposes of this section and Section 65583, the phrase "use by right" shall mean that the
local government's review of the owner-occupied or multifamily residential use may not
require a conditional use permit, planned unit development permit, or other discretionary
local government review or approval that would constitute a "project" for purposes of
Division 13 (commencing with Section 21000) of the Public Resources Code. Any subdivision
of the sites shall be subject to all laws, including, but not limited to, the local government
ordinance implementing the Subdivision Map Act. A local ordinance may provide that "use
by right" does not exempt the use from design review. However, that design review shall
not constitute a "project" for purposes of Division 13 (commencing with Section 21000) of
the Public Resources Code. Use by right for all rental multifamily residential housing shall be
provided in accordance with subdivision (f) of Section 65589.5.
C. Provide Additional Specification on Residential Development in the HEOZ
Division 5 of Article VIII, “Overlay Zones and Historic Preservation,” of Chapter 29, “Zoning
Regulations,” is amended to provide clarification on what regulations apply to “by right”
and “non by right” residential development in the HEOZ.
Specification includes the following for “by right” developments:
• Residential developments on sites with underlying zoning of RM, CH, or NF-SP with at
least 20 percent of the units proposed for “low income” households and without a
subdivision are subject to “by right approval.”
• The developments must be developed at the densities specified in Table 1A below and
in no event shall any residential development projects be developed below the
minimum density of 30 units per acre.
• The developments shall be subject to non-discretionary design review based on
objective development standards in accordance with the procedures specified in Article
II, "Administration and Enforcement,” of Chapter 29, “Zoning Regulations,” of the Town
Code.
• No California Environmental Quality Act review shall be required.
• Subdivisions remain subject to all applicable state and local laws, including but not
limited to the Subdivision Map Act.
• Residential units shall occupy at least 50 percent of the floor area in all mixed-use
projects.
• For residential developments and mixed-use projects, the standards set forth in Table
1A shall apply.
PAGE 4 of 5
SUBJECT: Housing Element Overlay Zone/Z-24-001
DATE: January 19, 2024
DISCUSSION (continued):
Table 1A HEOZ Development Standards for “By Right” Residential Development
General Plan
Land Use
Designation
Zoning Minimum Yards Maximum
Lot
Coverage
Maximum
Floor Area
Ratio (FAR)
Maximum
Height
Limit (ft)
Density
Units Per
Acre
High Density
Residential
R-M As authorized by
Section 29.40.645
75% N/A 45 feet 30-40
Mixed-Use CH As authorized by
Section 29.60.435
N/A 3.0 45 feet 30-40
North Forty
Specific Plan
NF-SP As defined in
Specific Plan
As defined
in Specific
Plan
As defined
in Specific
Plan
As defined
in Specific
Plan
30-40
Specification includes the following for all other residential developments include the
standards in Table 1B:
Table 1B HEOZ Development Standards for Other Residential Development
General Plan
Land Use
Designation
Zoning Minimum Yards Maximum
Lot
Coverage
Maximum
Floor Area
Ratio (FAR)
Maximum
Height
Limit (ft)
Density
Units Per Acre
Low Density
Residential
R-1 As authorized by
Section 29.40.405
50% N/A 30 feet 0-5
Medium
Density
Residential
R-1D, R-D,
and R-M
As authorized by
Section 29.40.405,
29.40.530, and
29.40.645
75% N/A 35 feet 14-22 or 5-12
in Very High
Fire Hazard
Severity Zones
Neighborhood
Commercial
C-1 As authorized by
Section 29.60.225
N/A 1.0 35 feet 10-20
Central
Business
District
C-2 As authorized by
Section 29.60.335
N/A 2.0 45 feet 20-30
Office
Professional
O As authorized by
Section 29.60.100
N/A 1.0 35 feet 10-20
Specification includes the following for all residential developments, both “by right” and
“non by right”:
• The underlying zoning development standards will remain in effect for all other
development without a residential component.
• Regardless of the underlying zoning designation, no residential use may be developed
that does not meet the applicable HEOZ development standards.
• Where standards are not specified, the development standards provided in the
underlying zoning district shall apply.
PAGE 5 of 5
SUBJECT: Housing Element Overlay Zone/Z-24-001
DATE: January 19, 2024
DISCUSSION (continued):
D. Next Steps
The Town Council will consider the proposed HEOZ Town Code amendments at a future
date.
PUBLIC COMMENTS:
Public notification has included a legal ad in the paper. The meeting has also been publicized
on the Town’s website and through the Town’s social media platforms. As of the drafting of this
report, no comments from the public have been received.
CONCLUSION:
A. Summary
Consider a request for approval to further amend Chapter 29 of the Town Code to Define
“By Right Approvals” and amend the HEOZ as Division 5 of Article VIII, “Overlay Zones and
Historic Preservation.”
B. Recommendation
Based on the analysis above, staff recommends that the Planning Commission consider the
Town Code amendments and forward a recommendation for approval of the amendments
to the Town Council (Exhibit 2).
C. Alternatives
Alternatively, the Planning Commission can:
1. Continue the matter to a date certain with specific direction; or
2. Provide a recommendation for denial to the Town Council providing findings for denial.
EXHIBITS:
1. Adopted Ordinance 2347
2. Draft Ordinance
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LOS GATOS PLANNING COMMISSION 1/24/2024, Item #3,
Amendments to Town Code re: By Right Approvals,
Amendment to Housing Element Overlay Zone
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
Steve Raspe, Chair
Emily Thomas, Vice Chair
Susan Burnett
Melanie Hanssen
Kathryn Janoff
Adam Mayer
Town Manager: Laurel Prevetti
Community Development
Director:
Joel Paulson
Town Attorney: Gabrielle Whelan
Transcribed by: Vicki L. Blandin
(619) 541-3405
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LOS GATOS PLANNING COMMISSION 1/24/2024, Item #3,
Amendments to Town Code re: By Right Approvals,
Amendment to Housing Element Overlay Zone
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P R O C E E D I N G S:
CHAIR RASPE: We now move to the public portion
of the hearing tonight, and tonight we have a single item
on the agenda, a request to further amend Chapter 29 of the
Town Code to define “By Right Approvals,” and amend the
Housing Element Overlay Zone as Division 5 of Article VIII,
“Overlay Zones and Historic Preservation.” An Environmental
Impact Report was prepared and certified for the 2040
General Plan Update on June 30, 2022. As a result, no
further environmental analysis is required.
Tonight I believe our Staff Report is from Ms.
Walters. Ms. Walters, would you like to proceed?
ERIN WALTERS: Yes, good evening, Chair and
Planning Commissioners.
Before you tonight is an amendment to the Housing
Element Overlay Zone Ordinance, also known as the HEOZ
Ordinance. On November 21st of last year the Town Council
adopted the original HEOZ Ordinance as recommended by
Planning Commission, and this can be found in Exhibit 1.
Tonight’s amendment is in response to HCD’s
comments received by the Town on December 1st. The amended
ordinance does not change the density minimum or maximum,
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it does not propose to modify sites with the HEOZ Overlay,
but rather the proposed amendment provides more clear and
explicit language. The Town’s outside legal counsel,
housing consultant, and HCD have reviewed this language.
The proposed amended ordinance in Exhibit 2
includes a definition of “by right approval” by the State
government code. It also provides clarification on
regulations that apply to by right and non-by right
residential development, which is an HEOZ overlay.
Planning Commission recommendation tonight will
be forwarded to Town Council. Tentatively the Council will
hear this item on February 20th, and the second reading is
tentative for March 5th.
This concludes Staff’s presentation. Staff is
available for questions.
CHAIR RASPE: Thank you, Ms. Walters.
Commissioners, any questions for Staff on this item?
Commissioner Hanssen.
COMMISSIONER HANSSEN: Since we have gone through
plenty of reviews with HCD, you did mention that this
proposed change in language has been reviewed by outside
legal, our consultants, and HCD, so you know what my next
question is going to be. We shouldn’t have any issue with
getting this through HCD this time. They did flag that we
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had not met the requirements for the rezoning, and so this
will take us there and we don’t have anything left?
ERIN WALTERS: That would be our hope per their
review and our guidance from outside counsel.
COMMISSIONER HANSSEN: But they actually reviewed
this section of what changes and they said it looks okay?
ATTORNEY WHELAN: They have. Yes, they did. This
is Gabrielle Whelen, Town Attorney. They reviewed the
ordinance over the past several weeks. They did have some
questions for Staff on Monday and we responded to those
questions, and I believe it meets their requirements.
COMMISSIONER HANSSEN: Okay, thank you.
CHAIR RASPE: Thank you. Any other questions from
Commissioners? Commissioner Janoff.
COMMISSIONER JANOFF: Thank you. Since you met
with HCD on Monday, or had feedback on Monday, and we
received our packages on Friday, did the feedback from HCD
offer any substantial changes to what you had offered?
ATTORNEY WHELAN: No, they wanted to see
explicitly where it is stated that any residential
development must comply with the minimum densities that are
set forth in the ordinance, and so we provided that. I
can’t remember their other questions. They had like two
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other questions. It was mostly they wanted to know where
specifically in the ordinance requirements were located.
JENNIFER ARMER: I can jump in through the Chair
to provide additional clarification. We shared this draft
of the ordinance with HCD and with our reviewer on Friday
at the same time that we provide you with the Staff Report,
and we heard from them on Monday with a few clarifying
questions.
It seemed clear that they were just confirming
that certain things were in there, for example, the fact
that you can’t use the underlying zone, which might have a
lower density, but that you would need to meet the minimum
density in the Housing Element Overlay Zone, and so it was
just confirming that those were located within, and we
received acknowledgement of our responses.
CHAIR RASPE: Thank you so much. Any further
questions, Commissioners? I have just one, and correct me
if I’m wrong. This appears to me to be a largely technical
correction for some language to be included. Is it correct
that this does not impact our RHNA allocation numbers?
ERIN WALTERS: That’s correct, that does not
change.
CHAIR RASPE: I appreciate the confirmation.
Thank you. Commissioners, anything else? Let’s then go to
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members of our public for their comments. I have two cards
tonight. Lee Fagot, if you’d please come to the podium and
state your name for the record. You have three minutes.
LEE FAGOT: Good evening, thank you. Appreciate
the opportunity to speak tonight. Lee Fagot, a resident of
Los Gatos. I’m not representing any group; I’m speaking as
an individual long-term resident of the Town.
I appreciate the clarification tonight from the
feedback that occurred Monday that was discussed as well
earlier this week by Council.
My concern is that we must preserve the historic
parts of our town, because that is the history of this
town, that is the legacy, and that is what our next
generations want to be able to relate to; that link is
critical. If there is a way to go forward and continue to
preserve and still meet the RHNA allocation requirements of
numbers of sites, please find a way to do that.
The other question I had was going to be did you
consider input from HCD from this week, but I just heard
you do that.
Again, thanks for all the work that you’ve been
doing. It’s been a lot of effort, a lot of work, and the
citizens appreciate it. You are representing us, the
citizens in town going forward, and preserving the
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character of our town. The heritage that we inherited needs
to be passed on, so please do what you can to preserve the
Historic District and those sites with the design elements,
the height, and densities that are appropriate.
Seeing Victorian homes with five-story monoliths
next to them, as we’ve seen in some other municipalities,
is not Los Gatos, and we can’t let the clowns in Sacramento
begin telling us how we’re supposed to live our lives here.
Let’s be folks who take control of our lives here locally
and manage it as best we can through this process and their
edicts that are coming down. Thank you.
CHAIR RASPE: Thank you, Mr. Fagot. Before you
sit down, do any Commissioners have any questions? No.
Thank you, again, for your comments. Lee Quintana, please,
if you would approach.
LEE QUINTANA: I was going to ask the question
also whether this had been reviewed by HCD, and I guess
that’s been answered, but I do have some questions.
The first question I have is I’m somewhat
confused by the 1-A, which is, “Developments must be
developed within the densities of Table 1-A below.” Is it
“within” the densities, or “at” the densities?
It says in one place as long as there is no
subdivision, I believe, and then in another place it
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indicates that subdivisions may be applicable. “Subdivision
remains subject to all the applicable state and local laws,
including but not including the Subdivision Act,” so I was
a little confused about that.
If you could refresh my memory, are there any
medium-density sites within the AHOZ zone? My concern there
is most medium-density sites in the downtown area are
either on very small lots so they can’t be developed into
larger homes, or they are pre-1941, or they are within an
historic district, so I just wanted clarity on that.
The other thing I wanted clarity on is whether or
not all of the AHOZ zones currently have a General Plan
designation and a zoning designation that are consistent
with one another, because along the Boulevard I’m not sure
they are. Those are my major questions.
CHAIR RASPE: Thank you, Ms. Quintana. Before you
sit down, any Commissioners have questions of Ms. Quintana?
Seeing none, thank you again for your comments. I think
that’s all the public comments we have here in the
chambers. Mr. Paulson, anybody on Zoom wishing to speak on
this matter?
JOEL PAULSON: No, there are no speakers on Zoom.
CHAIR RASPE: Thank you. I’ll then close the
public portion of this matter and I’ll open up the
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Commission to discussion, questions of Staff, anything
further. Commissioner Burnett.
COMMISSIONER BURNETT: Thank you to the two Lees
for your questions. My question would be for Staff. Would
you be able to addresses Ms. Quintana’s two questions?
ATTORNEY WHELAN: I can address the first two
questions.
COMMISSIONER BURNETT: Thank you.
CHAIR RASPE: Please proceed.
ATTORNEY WHELAN: As written, the ordinance said
that developments must be developed at the density
specified in Table 1-A, but those densities are ranges.
I think it’s clear as it is, but if the Planning
Commission feels that it would be clearer to say “within
the density ranges specified in Table 1-A below,” I’d be
open to making that change pending input from CDD.
The second question was about subdivisions. The
first part of the ordinance where subdivisions are
referenced is intended to say that, “Projects requiring
subdivisions will not be by right projects,” and then the
second reference to subdivisions in the ordinance is
intended to say that, “Subdivisions will remain subject to
all other applicable laws,” which is another way of saying
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that subdivisions won’t be by right development, and so
that was our intent with the drafting.
CHAIR RASPE: Commissioner Burnett, does that
answer your question?
COMMISSIONER BURNETT: Yes, thank you.
CHAIR RASPE: Thank you. Commissioner Hanssen.
COMMISSIONER HANSSEN: I thought it would be
worth asking the question about the timing of this since we
had a lot of Builder’s Remedy applications. When this
actually takes effect, we do have some sites that are
contained within the site inventory where we’ve already had
a proposal from someone to develop then, and so I’m pretty
sure that this won’t apply to them because of the timing of
their application, but I thought it was worth asking that
question, and then I have a follow up question.
JENNIFER ARMER: Thank you for that question.
Yes, for those that have already had their preliminary
application deemed submitted, those vest the regulations at
that time, and so any that were deemed submitted prior to
December 21, 2023 but then had the overlay zone applied
would be developed under the previous zoning.
If though, through the development process or
decisions by the Applicant, that vesting is lapsed so they
don’t meet the State regulations or they choose to change
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the project by more than 20% for floor area or number of
units, then they would need to restart and it would be
newly vested, and therefore they would then be subject to
the Housing Element Overlay Zone regulations.
This really is being more explicit about what we
already were referencing and had in place with the Housing
Element Overlay Zone, so it’s stronger, more defensible,
and follows the direction from the State, but does not
substantially change anything, because the numbers in the
table are still the same.
COMMISSIONER HANSSEN: Thank you; that was very
helpful. Related to that, would it also be true that since
they filed it and they are vesting with the zoning that was
there at the time that they are not eligible for by right
unless they came in under some other provision like it was
provided for in SB 330?
JENNIFER ARMER: If I understand the question
correctly, if we’re talking about a site that then has been
rezoned in order to provide affordable units in our sites
inventory, but that rezoning occurred after the vesting of
the regulations, your question is are those by right as
described in here? I will defer to the Town Attorney to see
if she has thoughts on that question.
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ATTORNEY WHELAN: I probably don’t have an answer
for the Planning Commission tonight. What I can do is
follow up with a memo.
COMMISSIONER HANSSEN: Okay. I think that would
be really helpful to understand, especially since we have a
number of applications out there.
One last question, if the Chair doesn’t mind, and
this is for the benefit of people watching or trying to
understand this. When it’s by right, if they meet the 20%
affordable, what by right means is that they do have to
live within our objective standards within our zoning, but
there is no discretionary review if it doesn’t seem
compatible with the neighborhood as long as it meets the
objective standards in our Zoning Code. Is that how you see
by right?
ATTORNEY WHELAN: Yes, the two big impacts are
they’re subject only to objective design review, and there
is no analysis under CEQA.
COMMISSIONER HANSSEN: So if people don’t like
the architecture or something else, that’s not something
that we have purview over once it becomes by right?
ATTORNEY WHELAN: So long as it meets the Town’s
objective design standards, that’s correct, and then there
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would be no opportunity to evaluate the aesthetics under
CEQA.
COMMISSIONER HANSSEN: Okay, thank you.
CHAIR RASPE: Thank you for those answers.
Commissioners, any further questions for Staff? Vice Chair
Thomas.
VICE CHAIR THOMAS: Thank you. I did just want to
follow up with a question regarding the densities versus at
the density ranges. When I read this I assumed that was
within the… I understand why it’s not within, because that
would intend lower ranges also, but I guess I’m asking the
Community Development Director, do you feel like what
language is most helpful for Staff?
JOEL PAULSON: I would say that Staff doesn’t
have a preference. The Town Attorney has offered that if
you want to make that change she’s comfortable with that,
so we would be comfortable with it as well.
VICE CHAIR THOMAS: Okay. I don’t have a huge
opinion either way, but I’m also not a developer person
that’s going to be reading this.
CHAIR RASPE: Commissioner Janoff.
COMMISSIONER JANOFF: I would only say that
because it’s a range I would suggest that we use the word
“within.”
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CHAIR RASPE: Very good. Commissioners, any
further questions or comments? If not, I’m willing to
entertain a motion at this time. Further comment from the
Vice Chair.
VICE CHAIR THOMAS: This is a question for the
Town Attorney. What language would you be comfortable
changing to?
ATTORNEY WHELAN: I think another alternative
would be, and this is pending acceptance by CDD, “The
developments must be developed within the density ranges
specified in Table 1-A below.”
VICE CHAIR THOMAS: Okay.
JENNIFER ARMER: That’s acceptable to us.
CHAIR RASPE: Thank you. Commissioner Hanssen.
COMMISSIONER HANSSEN: I just wanted to weigh in
and say that it feels clearer to me to use the word
“within” than “at,” but that could just be me.
CHAIR RASPE: Thank you, and with that
clarification, is the Commission ready to proceed with this
matter? I can give a crack at the motion, seeing no other
takers.
I move to recommend to Town Council to further
amend Chapter 29 of the Town Code to define “By Right
Approvals,” and amend the Housing Element Overlay Zone as
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Division 5, Article VIII, “Overlay Zones and Historic
Preservations,” containing the language as provided to the
Planning Commission in the Staff Report with the singular
change suggested by Town Counsel, substituting the “within”
language as opposed to the “at” language. Making all
necessary findings. Commissioner Hanssen.
COMMISSIONER HANSSEN: I second the motion.
CHAIR RASPE: Vice Chair Thomas.
VICE CHAIR THOMAS: I just wanted to say
explicitly amend the motion to contain Exhibit 2.
CHAIR RASPE: So amended. And the seconder?
COMMISSIONER HANSSEN: Yes.
CHAIR RASPE: Roll call or show of hands on this?
JENNIFER ARMER: Show of hands is fine.
CHAIR RASPE: So Commissioners, can I see a show
of hands of all those in favor of the motion? Being all in
favor, none against, the motion passes unanimously. Thank
you, Commissioners.
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