Staff Report
PREPARED BY : ROBERT SCHULTZ
Town Attorney
Reviewed by: Town Manager, Assistant Town Manager, and Finance Director
110 E. Main Street Los Gatos, CA 95030 ●A 40 8 -354 -68 32
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 0 8 /15 /2018
ITEM NO: 2
D ATE : AUGUST 10, 201 8
TO : MAYOR AND TOWN COUNCIL
FROM: LAUREL PREVETTI, TOWN MANAGER
SUBJECT: CONSIDERATION OF AN INTERIM URGENCY ORDINANCE OF THE TOWN
COUNCIL OF THE TOWN OF LOS GATOS EXTENDING FOR A PERIOD OF ONE
YEAR THE MORATORIUM PROHIBITING THE ISSUANCE OF LAND USE
DEVELOPMENT ENTITLEMENTS WITHIN THE NORTH 40 SPECIFIC PLAN
AREA UNTIL AN UPDATE TO THE NORTH 40 SPECIFIC PLAN HAS BEEN
COMPLETED
RECOMMENDATION :
Staff recommends that the Town Council open the public hearing and take testimony and
documentary evidence. After considering the evidence , consider whether to extend the Interim
Urgency Ordinance (Attachment 1). A 4/5 vote is required in order to adopt the ordinance.
BACKGROUND :
On August 15, 2017 , the Town Council adopted Interim Urgency Ordinance 2260 establishing a
moratorium on processing future development applications within the North 40 Specific Plan.
(“Moratorium”).A
On September 19, 2017, the Town Council adopted Interim Urgency Ordinance 2262, extending
the moratorium on processing future development a pplications within the North 40 Specific
Plan for a period of ten months and fifteen days .
PAGE 2 OF 4
SUBJECT: INTERIM URGENCY ORDINANCE
DATE: AUGUST 10, 2018
BACKGROUND (cont.):
On November 14, 2017, the Town Council held a Special Meeting to discuss potential
amendments to the North 40 Specific Plan, received public testimony, and provided staff
direction for amendments to the North 40 Specific Plan.
On January 16, 2018, the Town Council held a noticed public hearing to consider amendments
to the North 40 Specific Plan, received public testimony, and continued the matter to the
February 6, 2018 Town Council meeting with requests for additional informat ion from staff.
Due to the length of time anticipated to consider other items on the February 6, 2018 Town
Council agenda this item was continued to the March 6, 2018 meeting.
On March 6, 2018, the Town Council held a continued public hearing to consider amendments
to the North 40 Specific Plan, received public testimony, and continued the matter to the April
17, 2018 Town Council meeting with requests for additional information from staff. Staff was
not able to complete the work associated with the Town Council’sArequestsAforAadditionalA
information for the April 17, 2018 Town Council meeting and requested that the item be
continued to the Town Council meeting on June 5, 2018.
On June 5, 2018, the Town Council held a continued public hearing to consider amendments to
the North 40 Specific Plan, received public testimony, and continued the matter to the August
7, 2018 Town Council meeting with direction to staff.
On August 7, 2018, the Town Council held a continued public hearing to consider amendments
to the North 40 Specific Plan, received public testimony, and directed Staff to bring back an
ordinance extending the moratorium on processing future development app lications within the
North 40 Specific Plan.
DISCUSSION :
The Interim Moratorium Ordinance was adopted pursuant to Government Code section 65858,
which provides that an interim urgency ordinance adopted as an urgency measure shall remain
in effect for 45 days, unless extended for an additional period of up to 10 months and 15 days,
and a second time for up to an additional one year.
In addition, Government Code Section 65858 requires that prior to the expiration of an interim
urgency ordina nce; the Town Council shall issue a written report describing the measures taken
to alleviate the conditions that led to adoption of the ordinance. Since the adoption of the
Urgency Ordinance was enacted, s taff has been analyzing and research ing pot ential suggested
amendments and has prepared various redline versions of the North 40 Specific Plan. As set
forth above in the Background section, the Council held 6 public hearings to review potential
amendments to the North 40 Specific Plan. This Staff Report and all Staff Reports for the
PAGE 3 OF 4
SUBJECT: INTERIM URGENCY ORDINANCE
DATE: AUGUST 10, 2018
DISCUSSION (cont ’d):
Council Meetings set forth above shall serve as the report required under Section 65858 and
describe the steps already undertaken and anticipated by staff leading to future action by
Council with regard to updating and amending the North 40 Specific Plan.
The current Interim Urgency Ordinance will expire on August 15, 2018. In order to extend the
MoratoriumAOrdinance,AtheATownACouncilAmustAmakeAlegislativeAfindingsAthatA“thereAisAaAcurrentA
and immediate th reat to the public health, safety, or welfare, and that the approval of
additional subdivisions, use permits, variances, or other entitlements would result in that threat
toApublicAhealth,Asafety,AorAwelfare.”A
It is s taff’sApositionAthatAtheAconditionsAthatAexistedAaAyearAagoA which led to the adoption of the
moratorium do not exist today and therefore do not support the extension of the Interim
Urgency Ordinance. Staff does not support the extension si nce such ordinances, often referred
to as "stop -gap" or "incubation period" ordinances, should only prohibit a property owner from
using his or her property for a specified use for a limited period of time . Silvera v. City of South
Lake Tahoe; Fletcher v. Porter ; Mang v. County of Santa Barbara, CEEED v. California Coastal
Zone Conservation Com.
Numerous court cases have stated that the determination of the validity of a zoning ordinance
will hinge upon whether it is reasonable or arbitrary and oppressiv e and “a temporary
restriction upon land use may be a mere inconvenience where the same restriction indefinitely
prolonged might possibly metamorphize into oppression .” Metro Realty v. County of El Dorado .
For approximately 6 of the past 8 years, the Town has had a moratorium on any development
applications (not just for a specified use) within the North 40 Specific Plan area . It is s taff’sA
opinion that six years is too long to be considered a “stop -gap" or "incubation period ." In
addition, the courts have limited the extension of an interim ordinance to those situations
where actual approval of an entitlement is imminent and there is ample testimony on the
record that the North 40 property owners will not be filing development applications i n the
near future. Building Industry Legal Defense Foundation v. Superior Court.
Extending the moratorium to reconsider such issues as the number of housing units, additional
open space, and building heights, or to evaluate the impacts of Phase I, or be cause of current
traffic congestion, are not legitimate findings under Government Code Section 65858. If the
Town Council chooses to extend the Interim Urgency Ordinance, it will need to state on the
record the necessary findings to adopt the attached ordinance. A 4/5 vote is required by the
Town Council in order to adopt the ordinance. If adopted, the ordinance may also be
terminated by Town Council vote at an y time prior to its end date.
PAGE 4 OF 4
SUBJECT: INTERIM URGENCY ORDINANCE
DATE: AUGUST 10, 2018
ENVIRONMENTAL ASSESSEMENT :
The proposed extension of the Moratorium is exempt from review under the California
Environmental Quality ctA(“CEQ ”)ApursuantAtoAsectionsA15060(c)A(2),A15060(c)A(3)AandA
15601(b) (3) of the CEQA Guidelines, because the action will not result in a direct or reasonably
feasible indirect physical change in the environment . This Ordinance, therefore, is categorically
exempt from further CEQA review under CEQA Guidelines. This Ordinance does not authorize
any new construction or development entitlements. Any proposed project that will utilize the
changes set forth in this Ordinance will be subject to CEQA review as part of the entitlement
review of the project. The Ordinan ce will not adversely impact the environment and is
therefore exempt from the provisions of CEQA.
FISCAL ANALYSIS :
Continuing the Moratorium will require a significant commitment of staff time. While funding
this staff time does not require an additional appropriation, it will require staff to adjust its
priorities in working on other issues.
Attachments :
1. Interim Urgency Ordinance Extendin g Moratorium.