Attachment 5~
EDEN
HOUSING GROSVENOR.
February 13, 2015
Town of Los Gatos
Honorable Mayor Jensen and Council Members
Housing Element Advisory Board
'SuiviMERHILL -HOMES "'!
. ----·--------------------- ----J
CO MMUNITIE S 0 1' DIS T IN CTI O N
c/o Laurel Prevetti, Assistant Town Manager and Community Development Director
110 E. Main St.
Los Gatos , California 95031
Honorable Mayor Jensen, Council Members, and Housing Element Advisory Board Members:
At the February 3rd, 2015 Town Council Meeting, Council sought direction from Staff and the
Town Attorney to determine what the legal limitations may be for requiring developers on the
North 40 to provide for either an age 55-plus or 62-plus affordable or market rate component
through the North 40 Specific Plan .
This question has arisen on numerous occasions during the Specific Plan process . For our own
clarity , we requested a legal analysis from Goldfarb & Lipman. We have attached their
conclusions for your reference . In brief, while senior housing can be incentivized by a Specific
Plan, requiring such housing types would violate state and federal fair housing laws ..
Although the Town's Specific Plan is still in process, after years of observation and discussion
with the Town, we respect that the Specific Plan emphasizes residential design towards the
Town's unmet housing needs, including places for senior to live . We embrace the Town's vision
in the Specific Plan which allows for the provision of a multi-generational and mixed income
neighborhood . We are anxious to continue working with the Town to implement this vision.
We appreciate your consideration of the attached letter, and are available for any questions
regarding this matter.
Sincerely ,
A. Don Capobres
Senior Vice President
Grosvenor
Attachment: Fair Housing Issues Memo
Linda Mandolin i
President
Eden Housing
Wend i Baker
Vi ce President of Development
SummerHill Homes
ATTACHMENTS
gold fa rb 1300 C loy Street , Eleventh Floor
I i pm a n Ooklond , California 94612
attorneys 510 836-6336
M David Kroot February 12, 2015
Lynn Hutchins
Karen M. Tiedema nn
Thomas H . Webber
Dianne Jackson Mclean
Michelle D . Br ewer
Jennifer K. Bell
Robert C. M ills
Isobel L. Brown
Jomes T. Diamond, Jr .
Margaret F. Jung
Heather J. Gauld
Juliet E. Cox
W illiam F. D iCamillo
Amy DeVa udreuil
Barbara E. Ka utz
Er ica W illiams O rch arton
Luis A. Rodrig uez
Xochi t l Corri on
Rafae l Yoquian
Cel ia W . Lee
Vi nce nt L. Brown
Hono A . Hardy
Caroline N asell a
Eric S. Phillips
El izabeth Klueck
San Francisco
4 15 788-6336
Los Angeles
213 627-6336
Son D iego
619 239 -6336
Gold farb & Lipman LL P
To
Don Capobres, Grosvenor Americas
Wendi Bak.er, SummerHill Homes
From
Barbara E. Kautz
Fair Housing Issues Regarding Planning and Families with Children
Summary
During hearings on the North Forty Specific Plan , public comments have been
made opposing the Town of Los Gatos' (the "Town") approval of housing that
may attract families with school-age children because of school overcrowdin g. In
particular, proposals have been made that development on the site be limited to
senior housing or to other housing that will ·not accommodate families with
school-age children.
Both federal and state law prohibit the Town from using its planning and zoning
powers to deny residency to, or make housing unavailable to, or discriminate
against, families with children. Planning or zoning restrictions that are adopted to
discourage fami lies with children from living in the Town, or that prevent
families with children from living in the Town, such as zoni ng sites to permit
only senior housing or limiting the number of bedrooms in re si dences, would
deny residency to , make housing unavailable to, and discriminate agai nst.
families with children.
Further, a property owner or manager may not select individual tenants or buyers
on the basis of age unless the housing is designed as senior housing and the
property is operated consistent with federal and state requirements for senior
hou si ng.
Analysis
A. Zoning for Senior Housing
Federal and state statutes forbid the Town from enacting or e nforci ng land-u se
law s that operate to make housing "unavailable" based on "familial status.".
1588\03\ 1565758.4
February 12, 2015
Page 2
"Familial status" is generally defined as a household containing a person under
I 8 years of age residing with a parent or guardian. (Gov't Code§ 12955.2.)
In particular:
• The federal Fair Housing Act ("FHA") (42 U.S.C. § 3604(a)) forbids
actions by cities that operate to make housing "unavailable" based on
familial status [and other listed factors].
• The California Fair Emplo yment and Housing Act ("FEHA") (Gov't Code
§ 12955(!)) prohibits discrimination through land use practices that make
housing opportunities "unavailable" because of familial status.
• Planning and Zoning Law (Gov't Code § 65008(a)(l)) invalidates any
planning action if it denies the enjoyment of residence to any persons
because of familial status, age, [or other factors]. Section 65008(b)(l)
forbids cities from prohibiting or disc1iminating against any residential
development because of familial status or age.
Town zoning and planning actions taken for the purpose of discouraging the
construction of housing for families with children would violate these federal and
state fair housing laws. Similarly, planning and zoning actions that on their face
prevent occupancy of housing by families with children -even if done without
the intent to exclude families with children -would violate federal and state fair
housing laws. Examples could include allowing only senior housing to be built
on des ignated sites or limiting the number of bedrooms in homes .
The Senior Housing Exception.
All of the fair housing statutes contain exceptions for senior housing constructed
and designed in conformance with Ci v. Code § § 51. 2 -51.4 and similar
provisions of federal law. These sections allow discrimination based on age and
familial status by a "business establishment" if the hou sing is built and designed
to serve seniors. The California Legi slature made s ome of the requirements for
senior housing in California more stringenl than those imposed by the Fair
Hou sing Act "in recognition of the acute shortage of housing for families with
children in California." (Civ. Code§ 51.4(a).) A developer may propose, and .the
Town may approve, a development proposed by a developer for senior housing
but the Town cannot require senior hou s ing to be constructed or designate a site
for senior housing when there is no proposal or intent by a "business
estab lishment" to construct such housing . There is no exception to this rule for
affordable senior housing .
1588\03\ 1565758.4
February 12, 2015
Page 3
As discussed further in the next section, senior housing in compliance with these
provisions must either require all residents to be 62 years of age or older; or
comply with more stringent design standards and require at least one member of
each household to be 55 years of age or older. Housing otherwise cannot have
age limits or be limited to 'adults only,' and managers and brokers cannot
consider age or familial status in selecting tenants and buyers.
Zoning for Senior Housing. Local agency efforts to require hou sing to be built or
even maintained for seniors have usually been overturned by the courts. For
example:
• Despite an exemption in State law to allow Riverside County to maintain
long-standing senior housing zones, these were found to violate the Fair
Housing Act because the County did not ensure that the housing within
these zones actually complied with the statutory requirements. (Gibson v.
County of Riverside, 181 F. Supp . 2d 1057 (C.D. Cal. 2002).) Note also
that the specific exemption in State law for Riverside County's zoning
suggests that similar zoning by other cities and counties would violate
state fair housing laws.
• An ordinance adopted by American Canyon to require a mobilehome
park approved as a senior park to maintain its senior status, rather than
convert to an all-age park, was found to violate the Fair Housing Act
because the park had never, in fact, actually been operated as a senior
park in compliance with state and federal law. (Waterhouse v. Town of
American Canyon, 2011 U.S. Dist. Lexis 60065 (N.D . Cal. 2011).)
• A mobilehome park owner who alleged that the City of Fillmore adopted
invalid subdivision conditions for the purpose of preventing the park
from converting from a senior park to an all-age park was found to have
standing to sue the City under the Fair Housing Act. (El D o rado Estates
v. City of Fillmore, 765 F.3d 1118 (9th Cir. 2014).
One ordinance was upheld. The Town of Yucaipa was found to be in compliance
with the Fair Hou sing Act when it adopted zoning prohibiting existing senior
mobilehome parks, which in fact were being operated as senior parks, from
converting to all-age parks. (Putnam Family Partnership v. Town of Yucaipa,
673 F.3d 920 (9th Cir. 2012).)
The decision was confined to the situation where the parks were already
operating as senior hous ing. The Court specifically declined to determine if its
decision would be the same if the housing was n ot already serv ing seni ors. (Id. at
927 n.3) The decision was also based on federal law alone and did not consider
possible violations of State Planning and Zoning law or FEHA. State law does
1588\03\ 1565758.4
February 12 , 2015
Page4
not have the same language which was relied upon by the Court to uphold
Yucaipa's ordinance.
The Court also noted that the federal statute included a policy of "preserving"
senior housing and that Yucaipa's intent appeared to be to preserve existing
senior housing "rather than animus against families with children." (Id. at 931 .)
By contrast, in Los Gatos, there has been extensive public comment, testimony
from the School District, and statements by decision-makers indicating that the
Town wishes to discourage families with children from residing in the North
Forty because of school overcrowding. An early draft of the North Forty Specific
Plan stated specifically that, "Residential product types (market rate and
affordable) shall be limited to product types that respond to emerging demands of
the seniors, empty nesters, and young adult demographics" -all groups unlikely
to have children. 1 If the Town of Los Gatos were to require senior housing on the
North Forty or to adopt other Specific Plan provisions to prevent or discourage
households with children from moving to the North Forty, the record contains
substantial evidence of "animus" against households with children.
Incentives for Senior Housing. State and federal laws recognize that there is a
need for senior housing and provide funding and incentives to encourage senior
housing. For inslance, Slate density bonus law permits all sen ior housing to
receive a 20 percent density bonus whether or not it is affordable. (Gov't Code §
65915(b)(l)(C), (f)(3).) There does not appear to be a violation of fair hou si ng
laws if zoning incentives are provided for senior housing, in recognition of its
unique characteristics: lower automobile use, Jess traffic, smaller household size
(rarely more than two persons/household). Other incentives typically provided
may be lower parking requirements and reduced traffic impact fees. A recent
case recognized that there is a statewide priority to develop senior housing, and,
when a developer proposed a senior project, the city's zoning of the site for
higher density was not illegal spot zoning. (Foothill Communities Coalition v.
County of Orange (2014) 222 Cal. App. 4th 1302.)
However, if there is evidence that these incentives were adopted with the intent
of excluding hou sing for families with children, the zoning may be found to be
inv a lid . (C.f Pacific Shores Properties LLC v. City of Newport B each, 746 F.3d
936 (91h Cir. 2014; writ of certiorari denied, 135 S. Ct. 436 (20 14)) (holding that
facially neutral ordinance invalid where adopted with discriminatory intent).
1 HUD's Fair H ous ing new s leuer featured a c ase fil ed against th e Village of Bronxville, N .Y . c hall e ng ing
a Village ordinance that require s d evelope rs lo de mon strate lhat the design of residences is inte nded to
appeal primarily to s ingles and lo coupl es without c hildren -a provisio n s imilar to the original provisions
proposed in th e Specific Plan .. (Westchester R esidential Opp o rtunities Inc. v. Villa ge of Bronxville
(S.D.N. Y. Case N o. 15 CV 00280) (filed Janu a ry 15 , 201 5 ).
1588\03\ 1565758.4
February 12, 2015
Page 5
Conclusion.
Los Gatos cannot adopt Specific Plan provisions for the North Forty that exclude
or discourage families with children, such as by requiring the development of
senior housing or by zoning a portion of the site for senior housing only. While
the Town can provide incentives for senior housing in view of its unique
development characteristics, the incentives could be found to be invalid if they
are adopted with the intent to exclude families with children.
B. Selection of Buyers and Renters Based on Age
The Town has asked if the Specific Plan could require developers to reserve
some portion of the residences on the North Forty for seniors. Only housing that
qualifies as a senior development under both state and federal law may
discriminate based on age and familial status (42 USC § 3607(b)(l)-(3); Civ.
Code § 51.2(a)). Developers cannot choose to reserve a portion of the units in a
non-senior project for seniors, nor can local government require them to do so
Both the federal Fair Housing Act and California's Unruh Act contain standards
specifying whether a development qualifies as "housing for older persons" and
may discriminate based on age and familial status. Reading the two Acts
together, they allow the following types of senior housing:
• Housing provided under a state or federal program that HUD recognizes
as intended for elderly persons (42 USC § 3607(b)(2)(A)); Civ. Code §
51.2(e));
• Housing with fewer than 35 units occupied solely by persons 62 years of
age or older (42 USC§ 3607(b)(2)(B); Civ. Code§ 51.2); and
• Housing with 35 units or more either occupied solely by persons 62 years
of age or more; or occupied by households where at least one occupant is
55 years or older ( 42 USC § 3607(b )(2)(C); Civ. Code § 51.2 -51.3).
All new senior housing must include certain design features and have rules and
covenants clearly restricting occupancy consistent with the federal and state
occupancy requirements. Further, the policies, procedures, and marketing must
demonstrate that the project as a whole is intended for seniors. (54 Fed. Reg.
3255 (Jan . 23, 1989).) Mixed-income developments are only possible if separate
buildings are constructed for each income group.
If a development is not designed as senior housing, the owner or manager cannot
use age or familial status as a criterion in deciding whether to sell or rent a home.
1588\03\ 1565758.4
February 12, 2015
Page6
Conclusion
Requiring developers of non-senior housing to reserve a percentage of the units
for seniors would vio late state and federal housing laws.
1588\03\ 1565758.4
g 0 Id f ar b 13 00 C lc y Sire e•, Eleven th Fico·
I i pm an Oo~l c'1a , Co ;fo ,nia 946 l ?
at tor n e y s s 10 8 36 -6336
M Dav id K1oot March 25, 2015
Lynn Hutchins By e-mail
Koren M. Tiedemann
Thomas H. Webber
Dionne Ja ckson Mcleon
Michelle 0 . Srewer
Jen nifer K. Bell
Robert C. Mills
Laurel Prevetti , Town Manager
Town of Lo s Gatos
110 E. Main Street
Los Gatos , CA 95030
Iso bel L. Brown Re: lknsiC' Bonus Progrnm Applicitlion -NorCh F orty
Jomes T. Diamond , Jr .
Margeret F. Jung
Heather J. Gould
William F. Di Comillo
Amy DeVoudreuil
Borboro E. Koutz
Erice Williams Orchorton
Luis A . Rodriguez
Rofoe l Yoqui 6n
Celia W . Lee
Dolor es Bost ian Dolton
Joshua J. Mason
Vincent L. Brown
Hano A. Hardy
Caroline Nosella
Dear To"Ml Manager Prevetti :
This letter is written on behalf of th e appl ication of Grosvenor Americas for a density
bonus and other waivers of development standards as required b y California
Government Code Section 65915 ; Sections 29.10.405 -440 of the Town Code; and the
Town of Los Gatos Density Bonus Program Guidelines . It respond s to additional
questions raised by th e Town and incorporates by reference our letter of March 10 ,
20 16.
As background. the modifi cations being requested for the North Forty are a s follows :
I. A den s it y bonus of 3 5 percent. increasing th e permitted density from 23 7
units to 320 un.it s.
2 . W aivers of the development standard s listed below that would physically
preclude construction of th e dev e lopment with the density bonus:
Eric s. Ph i llips a . Measurement of building height from fini s hed grad e rather than
El izabeth Klueck existing grade: and
Doniel S. Maroon
Justin D. Bigelow
Son Francisc o
415 788-6336
Los Ange les
213 627 -6336
Son Diego
619 239 -6336
G oldfa r b & Li pman LLP
b . Increase in permitted h e ight of the affordable w1i ts from 45 feet
to 48'8" at the top of the roof rid ge a nd to 53 feet at the elevator enclosure over th e st a ir
to the roof.
The questions th at have been raised re late to : I ) t he calculation of the permitt ed density
bonus; and 2) th e need to meas ure building height from fini shed grade rath e r than
existing grade.
I 588103\1 874 132 .2 E\11 11111 2 2
March 26. 2016
Page 2
I. Proposed Density Bonus.
A housing development application is entitled to a density bonus over the otherwise "maximum
allowable residential density ." (Gov't Code Section 65915(f).1) The "maximum allowable
residential density" is the density allowed under the land use element of the general plan and the
zoning ordinance. (On the North Forty, the North 40 Specific Plan serves as the zoning
ordinance for the site .) If a range of density is permitted, the "maximum allowable residential
density" means the "maxim u m allowable density" applicable to the project under the zoning
ordinance and land use element . (Gov't Code Section 65915(0)(2).2) The density bonus 1s
calculated "as of the date of application by the applicant to the [Town]." (Section 659 l 5(f).)
Currently, the Land Use Element of the Town's General Plan and the North 40 Specific Plan
provide that the maximum res idential development permined on the North Forty is 270 units.
The Housing Element states that 13 .5 acres of the site is intended to accommodate 270
residences at a minimum density of 20 units per acre. It is clear from the Specific Plan that the
270 units of housing are intended to be located primarily in the Lark District and secondarily in
the Transition District; the Northern Oistrict is described as a "day-to-evening entertainment area
that offers shopping and restaurants for nearby residents as well as employment centers" and
allows only limited residential over commercial. The current application includes most of the
Lark and Transition Districts.
The only limitation on density in the North Forty provided in the Town's Lan<l Use Element and
the Specific Plan is the 270-u nit total. Therefore, the "maximum allowable residential density"
(without a density bonus) permitted for this application is 270 units, the maximum shown in the
Land Use Element and Specific Plan, less the nineteen existing units located elsewhere in the
North forty.
The current application must be reviewed on its own terms, based on the maximum density
allowed by the Land Use Element and Specific Plan. The "maximum allowable residential
density" cannot be reduced by modifying the Land Use Element and Specific Plan after the
application was submitted to reallocate some units to other sites within the North Forty not
currently planned for significant amounts of housing or to add a phasing requirement that does
not currently exist in the plan. Additionally, this change would conflict with numerous other
Specific Plan policies, which anticipate that most of the residences will be located in the Lark
and Transition Districts and that the Northern District would have limited residential uses. Any
reduction in density would also not enable the development to meet the 20 units per acre
requirement established in the llousing Element.
Although the project could request that it s density honus be calculated ovt!r the maximum
amount (270 units less the nineteen existing units), the current application calculates the density
bonus over a base dens ity of 23 7 units, given net residential acreage of less th a n 13 .5 acres, to be
1 All further refere n ces are to th<> Government Code.
1588\0J\1 K74132 .2
Marc h 25, 2016
P;ige 3
consistent with the Housing Element. With a 35 percent bonus. the project is entitled to :120
units, as shown in our March I 0 letter.
II. Proposed Waivers of Development Standards.
The North Forty application includes requests for two waivers of development standards under
the provisi o ns of Section 65915(e). This section provides that a city may not apply a
development standard "that will have the effect of physically precluding the construction of a
development !with affordable housing] at the densities ... permitted by this section."
We understand that the Town is primarily concerned about the request to measure building
heights from linished grade rather than from existing grade. Finished grade may be 0 .1 to 5 feet
(in limited areas) above existing grade. As described in our March 10 letter, this limited fill is
required because of the need to provide ADA accessibility, meet requirements for stormwater
quality, provide adequate flood control, balance cuts and fills to the extent feasible, and conform
to existing boundary conditions.
As a consequence. three-story units cannot be constructed in these areas of fill and meet the 35-
foot height limit if height is measured from existing grade (effectively reducing the permitted
height by 0 .1 to 5 feet). A third story, even if mea~ured from existing grade. can barely be
accommodated within the 35-foot height limit and is not possible if the height is measured from
existing grade . Because 75 percent of the units have three stories, we estimate that 97 units will
be lost if the heights are reduced to two stories, "physically precluding" a project with the 320
unit s that the project is entitled to.
Conformance with the Specific Plan. Limiting mos t building hei gh t s to two s tories would be
inconsistent with the Specific Plan's des ign guidelines and requin: further requests for waivers
from those provisions. The Specific Plan contemplates a mix of two and three story residences in
the North Forty. Specifically :
• Policy LU I 0 call s for a mix of residential product types.
• Section 2.5.2(a)(ii) requires a minimum of 15 percent of the units to have two stories,
with most located in the Perimeter Overlay zone, but thi s clearl y contemplates that mos t
residences will have three stories.
• Section 2. 7 .3 specifies that the residential units shall range in size and states that it should
accommodate a mix of residential product types to create th e character of an authentic
neighborhood. The illustrative examplt: of unit size mix included in the g los sary shows
units sizes ranging from 1.000 to 2,350 sq . ft. for the market-rate unit s.
• Sections :U.6(b), (c) and (d) require a variety of building forms and variations in height
and roor s hape. Section (h) disc usses adding variety to second and third floors .
I 5XK\0.1\l 874132 2
March 25, 2016
PClge 4
• Many of the graphic examples provided of the desired bu i lding forms s how buildings of
three stories or more with a height of at least 35 feet measured from finish grade.
The project that has been submitted to the Town conforms with all of the detailed design
guidelint.:s included in the Specific Plan but 1.:annot provide the variety and types of housing
contemplated if the site cannot contain three-story buildings.
In Wollmer v. Ciry n.f Bakeley (2011) 193 Cal.App.4111 1329, the City of Ilerkeley granted
waivers of development standards as part of a density bonus application. In particular, Berkeley
approved additional building height and reduced setbacks to accommodate ce11ain project
amenities, including an interior courtyard, a community plaza , 15-foot ceilings in the commercial
space, and nine-foot ceilings in the residences. Wollmer contended that Berkeley's usual
development s tandard s did not "physically preclude" construction of the project with the density
bonus because no waiver would be required if the developer removed all of the project amenities.
The Court rejected this argument, stating:
fN]othing in th e statute requires the applicant to strip the project of amenities, such as an
interior courtyard, that would require a waiver of development standards. Standards may
be waived that physically preclude construction of a housing development meeting the
requirements for a density bonus, period. The statute does not say that what must be
precluded is a project with no amenities, or that amenities may not be the reason a waiver
is needed . Had the City foiled to grant the waiver and variances, such action would have
had "the effect of physically precluding the construction of a development" meeting the
criteria of density bonus law. Id at 1346-47.
The development proposed on the North Forty is requesting a waiver not to provide additional
amenities but merely to provide the design variety and types of hous ing required by the Specific
Plan. Failure to grant this waiver would have the effect of "physically precluding" the
development required by the Town's own Specific Plan .
Grounds for Denial. A request for a waiver cannot be denied because of aesthetic impacts. It
may be denied only if it would be contrary to state or federal law, have an adverse impact on
property li s ted in the California Register of Historic Resources, or have a "specific, adverse
impact. as defined in f Government Code Section 65589.5(d)(2)], upon health, safety or the
physical cnvironmenl." (G .C. Section 6591S(e)(1 ).) Section 65589.S(d)(2) defines a "specific.
adverse impact" as "a significant, quantifiable, direct, and unavoidable impact, ba sed on
objective, identified written publi c health or safety standards, policies, or conditions as they
existed on the date the application was deemed complete. Incons istency with the zoning
o rdinance or general plan land use designation shall not constitute a specific, adverse impact
upon the public health or sa fety ." An aesthetic impact is not based on "public health or safet y"
standards.
I ~8810:1\1 K74 IJ2 2
March 25, 2016
Page 5
The proposed Phase I development on the North Forty would provide the Town with much
needed affordable housing. 111e development provid es more than e nough affordable housing to
qualify for the density bonus and waivers requested and will provide a substantial po11ion of the
Town's regional share of housing. Therefore, on behalf of Grosvenor Americas , we respectfully
request that th e Town approve the above requests .
If you have any question s regarding these request s or if you would like an y additional
infonnation. please feel free to contact me .
CXC , 0
/ '--
Barbara E. Kautz
Partner
bk autz@goldfarblipman .com
cc: Rob Schultz. Town Attorney
Marni Moseley, Senior Planner
I ~~8\!•31 18 7 4132 1
ANDRF.W L FAIJl!R
RALPll J SWANSON
PEGGY I. SPRINOOAY
JOSEPll E. DWORAK
SAMUEi. L. FARB
Al.AN J l'INNcR
LINDA A. CALLON
JAMES P. CASHMAN
STEVEN J. CASAD
NANCY J. JOHNSON
JEROLD A. REITON
JONA TllAN D. WOLF
KATllLICEN K. SIPLE
RETIRED
SAMUl:I. J COllEN
RO!ll!RT IV. llUMPlllUiYS
llUGH L. ISOLA
RODERl' I .. CHORTEK
KEV IN F. kF.l.LEY
MAKK MAKIEWIC7.
JEFFREYS. KAUl'MAN
JOLIE llOUSTON
BRIAN L. SHETLER
JOllN I'. DOMINGUE
H,\RR Y A. 1.0PEZ
CHAllLJ:S W. VOi.PE
MICHAEL VIOi.ANTi
CllRISTINJ; 11. LONG
AARON M . VALENTI
CHRISTIANE. PICONE
SUSAN E. nlSllOP
Mayor Marcia Jensen
~--.~,(:;~~···
~BE. •.. ER COHEN
,~~f::. ATTORNEYS AT LAW r'fr.r .~~<-·;. -
BERLINER COHEN, LLP
TEN ALMADEN BOULEVARD
ELEVENTH FLOOR
SAN JOSE. CA LIFORNIA 95113-2233
TELE Pl IONE : ( 408) 286-5800
FACSIMILE: (408} 998-5388
www.bcrlincr.com
IJunch Offices
Merced, CA • ModCJIO, CA
May 27, 2015
and Members of the Town Council
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
Re: Los Gatos North Forty Specific Plan
Agenda: June 2, 2015
Dear Mayor Jensen and Councilmembers:
TllOMAS P. MURPHY
Tl IOMA S D. MOllEl.l.
SHll J COUEN
EILEEN I'. KENNEDY
LAURA rALAZZOl.O
KAR" L. ARGUELLO
ANDREW J. GIORGIANNI
KIMlll1Rl.Y 0 . FLORES
MArnmw TA YI.Oil
DAWN C SWEATT
KATlll.lmN F. StlERMMI
MICHAEi. J CHENG
OF COUNSEL
SANFORD A. BERLINER
Sm VEN L. llALLGRIMSON
FRANK ll UflH,\US
ERIC WONG
$,\NORA G. SEPULVEDA
JENNJfl!R Y. LEUNG
ERIC D. TETRAULT
MAZARIN A VAK llARIA
TYi.E R A. SllEWEY
VIVIAN I'. WANG
11. SlllNNY LIU
SARA I .. POLLOCK
BEAU C. CORREIA
MARY fl.1.0UDEN
JACQUES F. DARITOT
STEPllEN C. SCORDELIS
MJCJIAJ::L D. IJAMS
NANCY L. DllANUT
TllOMAS ARMSTRONG
LHSLIH KAl,IM McllUGll
On behalf of our clients, Grosvenor Americas and SummerHill Homes, we write to express
concerns about several aspects of the discussion the Council has had so far regarding the North Forty
Specific Plan and provisions of the Revised Specific Plan . In particular, we have serious questions
as to (a) provisions regarding schools; (b) the public open space requirements for the project; and (c)
the limitation on the size of private open space.
This letter is from Andrew Faber as well as from attorney Barbara Kautz of Go ld farb &
Lipman LLP.
For the legally challenging reasons explained be low, we ask that in adopting the North Forty
Specific Plan, the Council: ( 1) eliminate new policies 19 and 110 related to schools; (2) not require
that all open space in the Plan Area be open to the public, (3) not place any size limitation on private
open space.
4Kl2-6743·0436v6
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Los Gatos Town Council
May 27, 2015
Provisions Regarding Schools
The Revised Draft Specific Plan has added two policies related to schoo ls. Policy 19
provides that "Developers are encouraged to collaborate with School Districts to address school
needs." Policy I 10 states that:
"Developers shall work closely with School Districts to project enrollment growth and
address overcrowding by assisting with identifying strategies for providing needed school
facilities and associated sources of funding." (emphasi s added)
The Leroy F. Green School Facilities Act of 1998 ("SB 50") strictly limits the
requirements that local agencies may place on developers in relation to school overcrowding. In
parti cular, SB 50 provides :
"A state or local agency may not deny or refuse to approve a legislative or
adjudicative act, or both, involving, but not limited to, the planning, use, or
development of real property, or any change in governmental organization or
reorganization as defined in Section 56021 or 56073 on the basis of a person's
refusal to provide school facilities mitigation that exceeds the amounts authorized
pursuant to this section or pursuant to Section 65995.5 or 65995.7, as applicable."
(Gov't Code§ 65995(i).)
In addition, payment of fees "shall be the exclusive method[) of considering and
mitigating impacts on school facilities," and "are ... deemed to provide full and complete school
facilities mitigation ." (Gov't Code§§ 65996 (a) and (b).) In other words, school impact fees
constitute adequate mitigation of school impacts, and a local agency cam1ot deny a project
because the developer has not taken actions to address overcrowding in addition to payment of
school fees.
Policies 19 and 110 are inconsistent with SB 50. Both require developers to take actions to
address overcrowding in addition to payment of school impact fees. This is especially ironic
given the various provisions intended to reduce student generation to one-third of that expected
from single-family homes, and the Specific Plan's statement that the number of students
anticipated is "minimal." (p. 5-15, Revised Draft.) We request that these polic ies be removed
from the Plan .
Public Open Space Requirements
With regard to requiring all open space to be accessible to the public, there was discussion at
the April 14 , 2015 Council meeting of possibly not counting certain hardscapes, podium green space,
or areas not open to the public as open space. If these re strictions are adopted, then in our clients'
opinion, it will not be feasible to develop a project consistent with the Specific Plan and with a
density and an affordable component that satisfies the Town's Housing Element.
In addition, any requirement that all open space areas must be accessib le to the public would
amount to an unconstitutional taking of private property, in violation of the Just Compensation
48 l 2·6743 ·0436v6
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Los Gatos Town Council
May 27, 2015
Clause of the United States and California Constitutions, as well as well-stablished federal and state
Supreme Court decisions. See Dolan v. City of Tigard (1994) 512 U.S. 374; Nol/an v. California
Coastal Commission (1987) 483 U.S. 825; Ehrlich v. City of Culver City (1996) 12 Cal. 4th 854.
A requirement for provision of public open space cannot be justified unless it is needed to
mitigate the impacts of private development. The standard of the No/Ian, Dolan, and Ehrlich cases
requires that there be an essential nexus to the impacts of the project, and that the requirement be
roughly proportional to those impacts.
However, this nexus requirement is not satisfied in the North 40 Specific Plan. There is no
impact on public open space due to the passage of the North 40 Specific Plan or the planned
development on the Plan Area. The EIR identifies no such impact, and the Town has no ordinance
requiring public open space in new developments, since there is already abundant public open space
in the Town, including near to the Plan Area. Furthermore, in fact there will be extensive open space
available to the public under the proposed plan and development, including landscaped setbacks, the
orchard land required to be preserved, plazas, paseos, and trails and walkways. Requiring that all
designed open space areas be open to the public would thus be unlawfol.
Private Open Space Size Limitations
The May 2014 hearing draft and the Revised Draft of the North 40 Specific Plan propose in
Section 2.7.2 to limit the amount of private open space per unit to 200 square feet -the approximate
size of a one-car parking space -a space too small for usual outdoor activities such as hosting
friends or family for a barbecue and outdoor dining.
The stated purpose of this limitation is to "encourage the residential product types targeted in
the plan area," which "shall be limited" to housing that serves "seniors, empty nesters, and young
adult demographics." (Section 2.7.1.) Policy 18 of the North 40 Specific Plan makes clear that this
requirement is intended to discourage families with school-age children from living in the North 40.
(p. 5-1.) The January 2013 Administrative Draft included even more explicit language, specifying
that open space was to be provided to support "adult" lifestyles while discouraging families with
children from Jiving in the North Forty. (pp. 2-10, 2-12, 3-19, 3-20 .)
Federal and state law forbid local governments from enacting or enforcing land-use laws that
discriminate based on familial status (42 USC§ 3604(b)), interfere with an owner's efforts to make
housing available to families (42 USC § 3617), or impose di ffe rent requirements on residential
developments because of familial status (Gov't Code § 65008(d)(2); see also Gov't Code §
12955(1).) While a limitation on private open space may seem neutral on its face, outwardly neutra l
actions by a city that are motivated by an intent to discriminate violate fair housing laws. (See
Budnick v. Town ofCar eji·ee, 518 F.3d 1109 (9th Ci r. 2008).) A court does not need to find this was
th e sole reason that the Town adopted a limitation on private open space, only that this was the more
likely motivation. (Harris v. ltzhaki, 183 F.3d l 043, I 051 (9th Cir. 1999); see also Gov't Code §
12955.8(a).)
4812-6743-0436v6
ALF\09427065
Los Gatos Town Council
May 27, 2015
Because the limitation on private open space is specificall y intended to discourage families
with children from living in the North 40, we request that this limitation be removed from the North
40 Specific Plan.
* * * *
We recognize that what is in front of the Town is the North Forty Specific Plan and not our
clients ' development project. However, the fact that the Town is considering a Specific Plan, and
not giving entitlements to an actual project, does not change in any way the applicable standards for
approval. Since a project will have to comply with the Specific Plan, if the Town puts invalid and
unconstitutional requirement s into the Plan, then in effect, the Town is saying that it will impose
such improper requirements on the ensuing project as well.
ALF:cem
cc : Rob Schult z, Esq.
Laurel Prevetti
Wendi Baker, SummerHill
Don Capohre.<>, Grosvenor
481 2-6743-0436v6
ALF\09427065
Very truly yours,
BERLINER COHEN, LLP
4W~-ra~{V /J~lt-
ANDREW L. FABER
E-Mail : andrew.faber@ berliner.com
GOLDFARB & LIPMAN LLP
·gti~1ci~ fftwfy /J1t
BARBARA KAUTZ
E-Mail : bkautz@goldfarblipman.com
g 0 Id far b 1300 Cloy Street, Eleventh Floor
Ii pm an Ooklond, Californio 9 4612
attorneys 5 10836-6336
M David Kroot July 7, 2016
Lynn Hutchi ns BY E-MAIL
Koren M . Tiedemann
Thomas H . Webber
Dionne Ja c kson Mcleon
Michelle D . Brewe r
Jennifer K. Bell
Ro bert C. Mills
Laurel Prevetti, Town Manager
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
Isabel L. Brown Re: Town Review of North Forty Planning Application
Jomes T. Diamond, Jr .
Margaret F. Jung
Heathe r J. Gould
William F. DiCami llo
Amy DeVoudreuil
Borboro E. Kou tz
Erica Williams Orchorton
"Luis A. Rodriguez
Rafae l Yo qui6n
Celia W . Le e
Dolores Bastion Dolton
Jos hua J. Mason
Vincent L. Brown
L. Katrine Shel ton
Hone A. Ha rdy
Caroline Nosello
Er ic S. Phillips
Elizabeth Klueck
Donie l S. Maroon
Justi n D . Bigelow
San Fran c i sco
41 5 788-6336
Lo s Ange les
213 627 -6336
Son Dieg o
619 239-6336
Goldfarb & Lipman LLP
Dear Town Manager Prevetti:
This letter is from Barbara Kautz as well as from attorney Andrew Faber of Berliner
Cohen LLP.
We represent the interests of Grosvenor USA Limited and Summerhill Homes
(collectively, the "Applicants") in relati o n to Architecture and Site Application S-13-
090 and Vesting Tentative Map M-13-014 (collectively the "Planning Applications")
for 320 residences and 66,000 sq. ft. of neighborhood commercial space located in the
North Forty Specific Plan area. This letter describes the limits placed on the Town of
Los Gatos' review of the Plannin g Applications, expands on the comments we made at
the Planning Commission's March 30, 2016 public hearing, and responds to issues
raised since that meeting .
In brief, under the Hous ing Accountability Act and Housing E lement law, the Planning
Applications may onl y be reviewed for conformance with objective Town standards and
policies that existed on the date that the Planning Applications were found to be
complete. The Town must ap ply those policies to faci litate the proposed density, not to
seek excuses for denying the Pl anning Applications. Under State Density Bonus Law,
the project is entitled to 320 units. The Town cannot app ly any development standard
that would preclude the project from being built at that density.
The Applicants appreciate the staff report's recommendation for approval of the
Pl anning Applications and the report's acknow ledgement th at the Planning Applications
are consistent with the "technical" (i.e., objective) requirements of the Specific Plan, the
General's Plan's goals and policies, and the Hous ing Element. However, the staff report
appears to imply that the Planning Commission, and ultimately the Town Council, may
reduce the density, modify the distribution of the housing units on the site, or otherwise
modify the application to better achieve "the look and fee l of Los Gatos ." Reduction of
the density or redistribution of the hou si ng units on th e site would be incons istent with
Density Bonu s Law, the Hou s ing Accoun tability Act, a nd Hou s ing E lement Law.
t 588\03\1884364.4
EXHIBIT 33
7/6120 t 6
Laurel Prevetti, Town Manager
Town of Los Gatos
July 7, 2016
Page 2
Similarly, the Town may not require modifications based on subjective standards such
as "the look and feel of Los Gatos." Instead , the Town's role is limited to a careful
review of the Planning Applications to ensure that they comply with the numerous
objective standards contained in the Specific Plan.
A detailed discussion is below.
A. Limits on Scope of Town's Review.
The statutes described below prescribe the limits of the Town's review authority
regarding the Planning Applications.
1. Subdivision Map Act. The Subdivision Map Act provides that, in
reviewing the application for a Vesting Tentative Map, the T own must apply only the
"ordinances, policies, and standards" in effect when the Town determined the
app lication to be complete. (Gov't Code § 66474.2; see Kaufman & Broad Central
Valley, In c. v. City of Modesto (1994) 25 Cal.App.4111 1577, 1585-86.)
2. Housing Accountability Act. The Housing Accountability Act (Gov't
Code § 65589.50)) provides that when a proposed housing development complies with
"applicable, objective general plan and zoning standards and criteria, including design
standards," in effect at the time the application is determined to be complete, the Town
may deny the project or reduce the density only if it makes "written findings supported
by substantial evidence" that both of the following conditions exist:
"(I) The hou sing devc.lopment project would have a specific, adverse impact
upon the public health or safety unless the project is disapproved or approved
upon th e condition that the project be developed at a lower density. As used in
this paragraph, a "specific, adverse impact" means a s ig nificant, quanlifiable,
direcl, a nd unavoidable impact, based o n objecti ve, identified wriuen public
health or safety s tandards, policies, o r conditions as they existed o n th e date the
application was deemed complete.
"(2) There is no feasible method to satisfactorily mitigate or avoid the adverse
impact identified pursuant to paragraph ( l ), other th an the disapproval of the
hou s in g development project or the approval of th e project upon the condition
that it be developed at a lower density." (See Honchariw v. County of Stanislaus
(2011) 200 Cal. App. 4th I 066, 1070 (s ubsecti on U) applies to both market-rate
and affordable hous ing developments, and nothing in the record supported a
finding that the project did not comply with County codes).)
Subsection (f) of the Housing Accountability Act further requires that the "development
standards , conditions, and policies shall be applied to facilitate and accommodate
1588\03\ 1884364 .4
7/6/2016
Laurel Prevetti , Town Manager
Town of Los Gatos
July 7 , 2016
Page 3
development at the density p ermitted on the site and proposed by the development."
(emphasis added).
These provisions of the Housing Accountability Act limit the Town's review of the
Planning Applications to the objective standards contained in the General Plan, Specific
Plan , and zoning code. The Town has no written health or safety standards violated by
the project. Once the Planning Applications comply with all objective standards -as
acknowledged in the staff report -no reduction in density may be required , nor may the
Town require changes in the Planning Applications that are not required by the adopted
objective standards.
3. Housing Element Law. Housing Element Action Item HOU-1.7
committed the Town to rezoning 13.5 acres on the North Forty to a minimum density of
20 units per acre to allow 270 units. Because the zoning had not been completed before
the Housing Element was adopted, the zoning was required to provide for "use by right"
as defined in Gov't Code §§ 65583.2(h) and (i). "Use by right" means that the Town
cannot require a use permit or other di scretionary approval that would constitute a
"project" for purposes of the California Environmental Quality Act (CEQA). Although
the Town may require design review approval, that review is also not subject to CEQA.
The Town's Housing Element provides that review of residential development
applications on the North Forty will occur "by right" based on the Town's design
guidelines, as required by State law . The Element further states that res idential
development on the North Forty will be approved "by right" if it meets "objective"
criteria in the Specific Plan's design guidelines. In particular:
• Page 16 states that the North Forty Specific Plan will rezone the North
Forty with a "minimum" density of 20 units per acre and will "provide
certainty regarding objective criteria in the form of development standards
and design guidelines that would be implemented through 'by right
development' in the consideration of Architecture and Site applications."
• Action item HOU-1.7 states that, after 13.5 acres within the North Forty
are zoned to permit a "minimum" den sity of 20 units per acre, housing
development will be "by-right as defined by not requiring a conditional use
permit or other discretionary approval; however, design review according
to the objective standards contained in the Specific Plan can occur."
(emphasis added).
Like the Housing Accountability Act, these Hou sing Element and State law
provisions limit the Town's review of the Planning Applications to the objective
standards contained in the various plans and do not allow the Planning Applications to
be evaluated under subjective standards. The Housi ng Element also requires that at
least 270 units be permitted at a dens ity of at least 20 units per acre.
1588\03\ 1884364 .4
7/6/20 16
Laurel Prevetti, Town Manager
Town of Los Gatos
July 7, 2016
Page4
4. Density Bonus Law. The Planning Applications are eligible for a 35%
density bonus, increasing the density from 237 units to 320 units, because the project
contains over 20% very low income housing (Gov't Code § 65915(f)(2)). Density
Bonus Law (Gov't Code § 65915) contains no grounds on which a request for a density
bonus may be denied. (See Gov't Code§ 65915(b); Friends of Lagoon Valley v. City of
Vacaville (2007) 154 Cal. App. 4th 807, 825 ("If a developer agrees to dedicate a certain
percentage of the overall units in a development to affordable or senior housing, the
Density Bonus Law requires the municipality to grant the developer a density bonus ."
(emphasis added)).
The density bonus must be granted by the Town. Any provisions of the Los Gatos
Town Code allowing denial of the bonus are inconsistent with State law and cannot be
used to deny the bonus.
Nor may the Town seek to reduce the density by applying other development standards.
"In no case may a city ... apply any development standard that will have the effect of
physically precluding the construction of a development. .. at the densities ... permitted
by this section." (Gov't Code§ 65915(e)(l).) If development standards must be waived
to allow construction of 320 units, the Town is required to do so. (See letter of
March 25, 2016 from Barbara Kautz.) If a court finds that a refusal to grant a density
bonus , incentive, concess ion, or waiver violated Density Bonus Law, it shall award the
plaintiff reasonable attorneys' fees. (Gov't Code§§ 65915(d)(3) and (e)(l).)
5. SB 50 and Fair Housing Law. The majority of the correspondence to
the Town has cited school impacts and a desire to relocate children to the Cambrian
School District as a primary reason to relocate housing to the Northern District. SB 50
does not allow the Town to establish conditions of approval based on school impacts,
nor do federal and s tate fair hou sing laws allow the Town to take actions to prevent
children from residing in Phase One by relocating homes to the Northern District.
SB 50. If a developer agrees to pay the fee s established by the Leroy
F. Greene School Facilities Act of 1998 (SB 50), the impacts on school facilities may
not be analyzed under the California Environmental Quality Act, no mitigation for
impacts on school facilities may be required, and the project may not be denied or
conditioned due to impacts on schools or due to the inadequacy of school facilities.
(Gov't Code § 65995(i).) Payment of school fees is the exclusive method to mitigate
impacts on schools and is deemed to provide full and complete mitigation of impacts.
(Gov't Code §§ 65996(a) and (b).) The Applicants have agreed to pay school fees and
have voluntarily entered into an agreement to pay additional amounts to the Los Gatos
Union School District. The Town may not impose any additional conditions -
including relocation of units to the Northern District --to reduce school impacts.
1588\03\1884364.4
7/6/20 16
Laurel Prevetti, Town Manager
Town of Los Gatos
July 7, 2016
Page 5
Fair Housing Issues. As documented in Barbara Kautz' memo of
February 12 , 2015, our May 27, 2015 joint letter, and additional evidence attached to
thi s e-mail, throughout the hearings on the North Forty Specific Plan there have been
extensive public comments and statements by decision-makers indicating that the Town
wishes to discourage families with children from residing in the North Forty, especially
within the boundaries of the Los Gatos elementary and high school districts.
Federal and state law forbid local governments from enacting or enforcing land-use
laws that discriminate based on familial status (42 USC § 3604(b)), interfere with an
owner's efforts to make housing available to families ( 42 USC § 3617), or impose
different requirements on residential developments because of familial status. (Gov't
Code § 65008(d)(2); see also Gov't Code § 12955(1).) Outwardly neutral actions by a
city that are motivated by an intent to discriminate violate fair housing laws. (See
Avenue 6£ Investments LLC v. City of Yuma, 2016 U.S. App. Lexis 5601 (91h Cir.
2016); Pacific Shores Properties LLC v. City of Newport Beach, 746 F.3d 936 (9th Cir.
2014).) A court does not need to find thi s was the sole reason that the Town adopted a
policy, only that this was the more likely motivation. (Harris v. /tzhaki, 183 F.3d 1043,
1051 (9th Cir. 1999); see also Gov't Code§ 12955.8(a).)
This history of an imus toward children and especially to children who would atte nd
schools in the two Los Gatos districts is likely a subs tantial motivation for any attempt
to relocate the housing to the Northern Di strict, in violation of fair housing laws.
B. Implications for Review of Planning Applications .
The s tatutes discussed above confine the Town's review of the Pl anning Applications to
the objective standards contained in the General Plan, Specific Plan, and zonin g
ordinance. As a consequence, Phase One is entitled to the 320 units requested;
conditions cannot be imposed on the project unless they are required by objecti ve
standards and policies, and the Town cannot use subjective criteria and findings to
condition or deny the Planning Applications. In particular:
1. The Town Cannot Reduce the Density of Phase One.
Density Bonus Law requires the Town to grant the density bonus and approve the 320
units the project is entitled to. Density Bonus Law contains no grounds on which a
density bonus may be denied.
2. The Town Cannot Require Units to be Redistributed or Relocated to
the Northern District
The staff report suggests that the Planning Commission has discretion to modify the
distribution of units within North Forty Specific Plan area, either by moving some units
1588103\1884364 .4
7/6/2016
Laurel Prevetti, Town Manager
Town of Los Gatos
July 7, 2016
Page 6
to the Northern District or otherwise redistributing them throughout the North Forty.
Neither of these requirements can be imposed on the Planning Applications because: (a)
they were not in effect when the Planning Applications were deemed complete; (b) they
would be inconsistent with both the adopted Specific Plan and the Housing Element;
and (c) requiring these changes would violate Density Bonus Law, the Housing
Accountability Act, and Housing Element law.
a. The Town Cannot Require the Units to be Relocated Because No
Town Policy Requires Relocation. The Housing Element states that the Planning
Applications will be reviewed based on objective policies in the Specific Plan. The
Housing Accountability Act requires that the Planning Applications be reviewed based
on objective General Plan, zoning, and design review standards. Not one of these Town
documents limits the size of Phase One on the North Forty or requires that the housing
be distributed evenly across the site. In consequence, the Town cannot reduce the
density of Phase One based on a desire to distribute the housing evenly on the site or to
move more housing to the Northern District. In any case, Density Bonus Law requires
the Town to allow 320 units in Phase One; the density cannot be reduced so units can be
moved to the Northern District, which is not part of the Planning Applications.
b. Relocation of Units Would be Inconsistent with the Housing
Element. The density of 20 units per acre promised in the Housing Element cannot be
obtained in the Northern District. With residential uses required to be located over
commercial and a 35-foot height limit (reduced further to 25 feet within 50 feet of Los
Gatos Blvd.), only one-story residences are possible on top of the required commercial
uses. The letter from the Applicants submitted concurrently with this letter
demonstrates that the required density of 20 units per acre is not reached even with
small units .
c . Relocation of Units Would be Inconsistent with the Specific Plan.
It is clear from the Specific Plan that the 270 units of housing at 20 units per acre
promised in the Housing Element were intended to be located primarily in the Lark
District and secondarily in the Transition District. The Lark District is intended for
residential and "limited" retail/office uses. The Transition District is intended as a
transition and buffer between the "primarily residential" Lark Di s trict and the "active
retail and ente1tainment emphasis" of the Northern District. By contrast, the Northern
District is described as a "day-to-evening entertainment area that offers shopping and
restaurants for nearby residents as well as employment centers " and allows only limited
residential over commercial.
Plainly the most housing was intended to be built in the Lark District and the least
amount of housing was anticipated to be built in the Northern District. A policy to
distribute housing evenly across the s ite is not consistent with the adopted Specific Plan.
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Laurel Prevetti, Town Manager
Town of Los Gatos
July 7, 2016
Page 7
3. Subjective Standards Cannot Be Used to Evaluate the Planning
Applications.
The staff report states that the Planning Commission has the discretion to consider the
"overall Vision and Guiding Principles" contained in the Specific Plan in making a
decision on the Planning Applications.
The Vision and Guiding Principles are not objective standards by which the Planning
Applications may be evaluated. Rather, in developing the plan, the Town translated the
Vision and Guiding Principles into the objective standards required to meet the Town's
commitments in its Housing Element. The objective criteria contained in the Specific
Plan (number of units, building height, setbacks, etc.) reflect the Town's judgment
regarding what development on the North Forty is consistent with the Vision and
Guiding Principles. As an example, the Guiding Principle regarding the "look and feel
of Los Gatos" was translated into detailed policies for perimeter setbacks and
landscaping contained in Table 2-5 and into detailed s pecifications for cottage and
garden clusters contained in Table 2-7; for townhomes and rowhouses in Table 2-8; and
for affordable homes in Table 2-9. The Town's consulting architect concluded that, by
conforming to these standards, the overall de velopment obtained "the look and feel of
Los Gatos."
However, the Vision and Guiding Principles in and of themselves are not objective, and
by themselves, divorced from the objective standards, they may not be used to evaluate
the Planning Applications. All are s ubjective criteria that cannot be the basis for a
decision on the project. Because the Planning Applications comply with the objective
s tandards contained in the Specific Plan, they are by necessity consistent with the
Vision and Guiding Principles.
****
Summary. The State law prov1 s1ons di scussed above require that the Planning
Applications may only be reviewed for conformance with existing objective Town
policies, which mu s t be applied to f acilitate deve lopment of 320 units. The Town may
not reduce density, require project pha sing, relo cate units to other sites on the North
Forty, place units in other school districts, reduce heights, or impose any other
requirement not already contained in the adopted development standards. Nor c an the
Pl a nning Applications be denied ba sed on subjective standards, such as those contained
in the Vision and Guiding Principles .
I 588\03\1 884364.4
7/6/2016
Laurel Prevetti, Town Manager
Town of Los Gatos
July 7, 2016
Page 8
Instead, the Town 's role is to review the confonnance of the Planning Applications with
the numerous objective design guidelines, landscape requirements, circulation and
infrastructure standards, and other objective requirements contained in the Specific
Plan. All of the review completed to date, including review by the Town's consulting
architect, has concluded that the Planning Applications are consistent with the
"applicable, objective general plan and zoning standards and criteria, including design
stWldards" in effect when the Planning Applications were found to be complete .
The Applicants have worked cooperatively with the Town since 2010, for the over five
years that the North Forty Specific Plan was under consideration . On May 5, 2015 the
Town adopted a Housing Element designating the North Forty for 270 units at 20 units
per acre , and in June 2015 the Town adopted a Specific Plan containing detailed design
guidelines, development regulations, and mitigation requirements . The North Forty was
adopted as a Housing Element site specifically because the Specific Plan placed so
many requirements on a residential project to ensure high quality and because the
Applicants had agreed to extensive voluntary mitigation measures, such as additional
funds for the Los Gatos Union School District. The Applicants now simply seek to
develop the project envisioned by the Specific Plan, which will be an asset to the Town .
However, in the event that the Town denies the Planning Applications or approves them
with conditions that violate the legal framework described above, the Applicants intend
to fully enforce their legal rights and remedies.
If you have any questions, please feel free to contact us .
Sincerely,
GOWr&L~LLP J J ~L ' < I ~
BARBARA E. KAUTZ
bkautz@goldfarblipman.com
-
andrew .faber@berliner .com
I S88\03\l919SS7 . I
71612016
Laurel Prevetti, Town Manager
Town of Los Gatos
July 7, 2016
Page9
cc: Don Capobres, Grosvenor USA Limited
Wendi Baker, Summerhill Homes
Andy Faber, Berliner Cohen LLP
Rob Schultz, Town Attorney
Joel Paulson, Community Development Director
1588103\1884364.4
7/6120 16
ADDITIONAL STATEMENTS AND POLICIES REGARDING DESIRE TO EXCLUDE
FAMILIES WITH CHILDREN
A. Until final revisions were made to the Specific Plan on June 17, 2015, it contained explicit
statements showing animus against families with children (see attached final revisions dated
June 17, 2015). Among these were:
1. Section 2. 7 .1: "Residential product types (market rate and affordable) shall be limited to
product types that respond to emerging demands of the seniors, empty nesters, and
young adult demographics" -all demographics unlikely to have children.
2. Policy I8 stated explicitly that the purpose of these limitations was to discourage school-
aged children from residing in the North Forty: "Minimize impacts to schools by
designing housing products that cater to senior, empty nester, and young adult
demographics."
3. Appendix C was entitled "Young Adult, Senior, and Empty Nester Design Summary." It
asked, "How does design attract Gen Y and Baby Boomers instead of families?" and
suggested nightlife instead of schools and parks, stacked flats ("not good for families
because of noise issues"), and elevators rather than direct access to yards.
Removing these provisions from the Specific Plan at the last minute does not correct the animus
against school children that has tainted the project review throughout.
B. The Specific Plan continues to have a "Young Adult, Senior, and Empty Nester"
summary indicating a desire not to attract persons between 32 and 48 years of age -a
demographic most likely to have school-age children. Policy LUlO continues to provide for a
mix of residential types "designed to minimize impacts on schools." At the March 30 hearing
regarding the Planning Applications and in extensive correspondence submitted to the Town,
most members of the public suggest that housing should be relocated to the Northern District so
that fewer children will attend schools in the Los Gatos Union School District and the Los Gatos-
Saratoga Joint High School District. At the joint Commission-Council study session held on June
15, 2016, Town staff stated that the Town already has "a lot of family housing" and that
designing for senior and youth housing is "an indirect way to get to the school issue" -again
demonstrating the Town's intent to keep school -aged children out of the North Forty, especially
Phase One.
~ '-
GROSVENOR
Joel Paulson
Town of Los Gatos Planning Department
110 E. Main St.
Los Gatos, California 95031
~
EDEN SLJMM I-RHll .l. HOMES
HOUSI NG COMMlJNlll r S 01 D I STINCT I ON
July 8, 2016
Re: Response to Questions Raised at March 30, 2016 Planning Commission Study Session and
June 15, 2016 Joint Study Session -North Forty
Dear Joel:
In preparing our application for Phase One of the North Forty, we have designed a project that
conforms with all objective standards established in the North Forty Specific Plan . The Town's
Housing Element (Actions HOU-1 .7, HOU -2.2 and HOU -2.4) states that it will review a project on
the North Forty based only on these objective criteria, and State law (Government Code Section
65589.S(j)) requires the same. If the project conforms to the objective standards in the Plan , it
must be approved by the Town.
At the March 30th 2016 Planning Commission Study Session , several questions were raised
regarding the design and site planning of our proposed North Forty application. Because our
application conforms to the Plan, these changes cannot be required by the Town. (Please see
letter submitted and dated July 8, 2016 from Barbara Kautz -Goldfarb Lipman and Andrew
Faber-Berliner Cohen.) Nonetheless, we have seriously con si dered the suggested changes and
have responded to the questions raised, as discussed below.
Question 1: Why can't the units specified in the Town 's North 40 Specific Plan as "Cottage
Clu ster" or single family detached be utilized in the project application?
Discussion : The Specific Plan is "focused on multi-family housing types." (Section 2.4, Page 2-6.)
Single family detached homes are expressly prohibited in the Specific Plan except for "cottage
clu ster" residential units, in the Lark District only, and only with the approval of a Conditional
Use Permit. Given the standards contained in the Specific Plan (Section 2.7.3.e, Page 2-26; page
6-10; and r eq uired se tbacks ), which require that cottage housing be designed as a collection of
small houses arranged around a common green spa ce with consolidated parking, the maximum
d ens ity that ca n be achieved is approximately 1 2-13 units p er acre. (See attached 1-Acre
"Cottage Cluster Study"). The North 40 is included in the Town's Housing Element, wh ic h
requires by-right development at a min imum density of 20 units/acre . Thi s required density
cannot be achieved on the site if cottage cl usters are included .
Question 2: Why can't the application propose basements, rather than 3rd stories, to achieve
the density required by the Housing Element?
Discussion : No policie s in the Specific Plan require basements or suggest that basement un its
would be desirable . Units with substantial living space contained in basements are much less
livable, with a large amount of the space effectively underground and with little access to light.
Basements are typically utilized for supplemental space rather than primary living space .
Additionally:
• Light wells with associated railings would penetrate into the pedestrian paseos and
sides of buildings, with approximately 35 square feet of open space per unit lost, for a
total of 10,480 square feet of open space in the paseos for light wells. (See attached
11 Lark District and Transition District Area D Basement Study".)
• Dirt off haul would extensively increase. The addition of basements results in
approximately 40,000 cubic yards of basement off haul, creating 3,350 truckloads of dirt
that would need to be removed from the property. Because basement living space was
not considered when the Specific Plan was adopted, any potential additional impacts of
basement construction were not evaluated in the EIR .
For all of these reasons, replacing a third story with basements is not a feasible alternative.
Please see attached 11 Lark District and Transition District Area D Site Plan Basement and
Lightwell Areas" and 11 Basement Study-Total Dirt Off Haul for Basements".
Question 3: Why can't the units be spread out into the Northern District?
Discussion : The applicants do not own area within the Northern District, and therefore the
application is for the property within their control. However, the Northern District is described
as a "day-to-evening entertainment area that offers shopping and restaurants for nearby
residents as well as employment centers" and allows only limited residential over commercial.
(Specific Plan 2.3.3, page 2-4 .) Building heights cannot exceed 35 feet. (Specific Plan 2.5 .2(a),
page 2-11). A study is attached that represents a 11 perfect" 2 .37 acre parcel that accounts for
the Specific Plan requirements, including retail and residential parking, 30% open space, 50%
maximum building coverage per application, and a 35' height limit. As this exhibit shows, even
with 1-bedroom apartments at 750 square feet, a density of approximately 14 units per acre
can be achieved, below the required minimum density of 20 units per acre . Please see attached
exhibit, "Single Level of Housing above Commercial Dens ity Study".
In conclusion, we have considered carefully these specific suggestions for amendments to our
project design and have concluded that they are not feasible . They cannot be imposed on the
project because none of these changes are required by the Specific Plan . As described in the
1588\03 \1919806.1
attached Project Summary, the proposed community is a celebration of the Los Gatos quality of
life that will be an asset to the community.
Sincerely,
A. Don Capobres
Principal
Harmonie Park Development
1588\03 \19 19806.1
Linda Mandolini
President
Eden Housing
Wendi Baker
Vice President of Development
SummerHill Homes
9
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MAIN STREET SIDE
5 UNITS CLUSTER 5 UNITS CLUSTER 3 UNITS CLUSTER
37'2:.(T'
62'-0" 62'·0" 62'-0" 62'-0"
, 16'.(T' I I I ~~. . .
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ALLEY SIDE
HYPOTHETICAL PLOT OF A
1 ACRE LOT WOULD YIELD 13
COTIAGE CLUSTER UNITS.
MAXIMUM DENSITY
APPROXIMATELY: 13 UNITS/ACRE
NORTH FORTY
Lark District
Cottage Cluster Study
I GRO~~LNOR I DA HLIN
~ 192-Gn I 07.115.16
Scola: 1/11" • 1'4'
12 24 EXH. B - 1 ACRE
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NORTH FORTY
·--• ..... --I DA HLIN .......!.!.!!.! I 192-G12 I 07.05.16
Lark District & Transition District Area D
Site Plan
Basement & Lightwell Areas
Sc1to:NTS
Exhibit E
GARDEN CLUSTER
Plan 1
CONDO CLUSTER
ROWHOME
NORTH FORTY
.>
l1R(J\\'l.NC>M.
Total
Light Well Baseme nt Total Area Cubic Ft Cub ic Plan Cubic
Dirt Off Haul (Sq Ft) (Sq Ft) (Sq Ft) x10'deep Yard occurance Yard
Plan 2 + Plan 2x 80 713 793 7 ,930 294 14 4 112 note: pla n 2 occur 10 limes , Pla n 2x occurs 4 limes @ GC 7/8 plex
Plan 3 80 886 966 9,660 358 8 2862
Plan 6 80 813 893 8 ,930 331 10 3 307
Plan 7 120 863 983 9 ,830 364 10 3,64 1
Total Cubic Yard 13,922
Note: All GC-5plex plan 1x & 2x are not included in this calculation .
oa
Total Cubic Ft
Light Well Basemen A rea (Sq x10' Cubic Plan
(Sq Ft) t (S q Ft) Ft) d eep Y ard occurance Cubic Yard
28 253 281 2 ,806 104 20 2,079
28 186 2 14 2,144 79 10 794
120 1594 1714 17,135 635 10 6,346
32 443 475 4 ,750 176 10 1,759
48 398 446 4 ,460 165 10 1,652
12,630
101a1
Light Well Basement Total Ar ea Cu bic Ft Cubic Pla n Cubic
Dirt Off Haul (Sq Ft) (Sq Ft) (Sq Ft) x10'deep Yard occurance Yard
Plan 1 40 295 335 3 ,350 124 36 4 ,467
Plan 2 40 31 2 352 3,520 130 37 4 ,824
Plan3 40 37 2 412 4,120 153 24 3,662
Total Cubic Yard 12,953
Note : Table above shows only a rough estimate for dirt Off ha ul calc.
TOTAL ADDITIONAL DIRT OFF HAUL FOR BASEMENTS = 39,505 CUBIC YARD
TOTAL LIGHTWELLS AREA= 10,480 SQUARE FEET (OPEN SPACE LOST)
I DAHLIN ) 1!J2-oJ2
Lark District & Transition District Area D
Basement Study
Total Dirt Off Haul for Basements
Single Level of11\Residential Above Commercial ~"1W 1 ~~~&1 ~ Dens~Stud~0 ., _.0 ~ ~ fJo~~vtSe:;t:> • b ~ ~
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