Attachment 9ANDREW l. FABER
RALPH J. SWANSON
PEGGY L. SPRING GA Y
JOSEPH E. OWORA(
SAMUEL L. FAR&
JAME S P. CASHMAN
STEVEN J. CASA D
NANCY J. JOHNSON
JEROLD A . RBTON
JONATHAN 0 . WOLF
(A THLEEN (. SIPLE
(EVIN f . KELLEY
MARK MAKIEWICZ
RETIRED
SANFORD A . 8ERUNER
SAMUEL J. COHEN
HUGHLISOLA
JEFFREYS. KAUFMAN
JOUE HOUSTON
BRIAN L. SHETLER
JOHN F. DOMINGUE
HARRY A. LOPEZ
CHARLES W, VOLPE
MICHAEL VIOLANTI
CHRISTINE H. LONG
AARON M. VALENll
CHRISTIANE. PICONE
SUSAN E. BISHOP
SANORA G. SEP UL VEDA
MICHAEL B. IJAMS
ROBERT W. HUMPHREYS
lJNOA A . CALLON
ROBERT l . CHORI EK
Marico Sayoc, Mayor
&BERLINER
a COHENLLP
~
TEN ALMADEN BOULEVARD
ELEVENTH FLOOR
SAN JOSE. CALIFORNIA 95113-2233
TELEPHONE: 1408) 286-5800
FACSIMILE: (408) 998-5388
www.bertiner.com
Branch Otfices
Merced. CA • Mode1to. CA
July 21, 2017
And Members of the Town Council
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
THOMAS P. MURPHY
EQ.EEN P. KENNEDY
LAURA PALA ZZOLO
KIMBERLY G. FLORES
OAWN C . SWEATT
MICHAEL J. CHENG
GHAZAlEH MOOARRESI
TYLER A. SHEWEY
H.SHINNY UU
OF COUNSEL
STEVEN l. HALLGRIMSON
FRANK R. UBHAUS
ER IC WONG
SARA l. P0ll0C(
8EAU C. CORREIA
LAWRENCE UN
OAV10 A. BELLUMORI
STEPHEN C . SCOROELIS
HARRY 8 . Gill
MICHAEL C . 8RANSCN
JUSTIN 0. PRUEITT
ANTHONY Oe JAGER
NANCY l . BRANOT
RICHARD E. NOSKY, JR .
LESLIE KALIM McHUGH
Re: Eden Housing Inc., et al v . Town of Los Gatos (Santa Clara County Superior
Court Case No. 16-CV-300733)
Town Council Meeting Date 7/24/17, Agenda Item 1
Dear Mayor Sayoc and Councilmembers:
On behalf of the Applicants and the Petitioners in the above-referenced lawsuit, Eden
Housing, Inc., Grosvenor Americas USA Limited and SummerHill Homes LLC, we wish to bring
certain matters to the Council's attention in advance of the scheduled hearing on this Project.
We generally concur with the Staff Report dated July 20, 2017, but offer a few comments
and clarifications. Before addressing those issues, however, we feel it is important that the Town
Council appreciate the implications and consequence of the fact that the Project has returned to the
Town Council by court order.
As you know, the Santa Clara County Superior Court determined that the Town's denial of
the Project was unlawful. The Court therefore issued a writ of mandate directing the Town to
rescind its denial and take appropriate action to comply with the Housing Accountability Act
(Government Code Section 65589.5 et seq., the "HAA''). This has two major consequences:
4817-7366-7659v8
ALF\09427073
ATTACHMENT 9
Marico Sayoc
Councilmembers
July 21, 2017
I. The Project before the Council
First, the Project in front of the Council is the existing application. Neither the Town nor the
Applicants are starting afresh at this time. It is not the Applicants' intention to present new
information concerning the Project, or to modify the prior application in any manner not previously
agreed to.
The previous hearings on this matter established conclusively that the Project complies with
all objective standards, policies, and criteria of the Town. See, for example, (a) repeated analyses
summarized in staff reports to the Planning commission and Town Council, and (b) the summary of
objective criteria presented to Council (see letter from Applicants August 5, 2016, containing an
analysis of 30 Objective Standards from the North 40 Specific Plan, and approximately 82 other
requirements of the Specific Plan, showing Project compliance). The Court in its Decision and
Judgment agreed that the record contains substantial evidence that the Project is consistent with all
objective standards. (Decision and Judgment, p. 4, fn. 3.) And the Town's current Staff Report again
states: "Staff has consistently stated that the proposed project meets all the Town's objective
standards." (p . 6)
The hearings established a complete record of documentation and oral and written evidence
with regard to this Project, which was all included in the Administrative Record filed with the Court.
As the Council was advised by the Town Attorney at the prior hearings, a Court can order approval
of the Project exactly as submitted by the Applicants. The Project has been described in great detail
in the prior hearings, and numerous questions asked by Staff and Councilmembers have been
answered during the hearings and in writing. Findings of denial may not be based upon additional
materials that may be offered at new hearings. Any such action by the Town would constitute a
denial of the right to procedural and substantive due process. While we will attend the hearings, any
written or oral participation on behalf of the Applicants shall not be deemed to be a waiver of our
position that no further hearings are necessary or appropriate.
2. The Continued Jurisdiction of the Court
The second consequence of the Court's Decision and Judgment is that the Town is now under
the jurisdiction of the Superior Court. The Court determined that the Town did not comply with the
Housing Accountability Act, and the Town has elected not to appeal this ruling. If the Town again
denies the Project in violation of the HAA, it will also be in violation of the Writ. The HAA itself
describes a range of remedies that the court could impose upon the Town under this scenario:
First, ifthe Town does not carry out the Court's decision within 60 days, the Court can issue
further orders to ensure the purposes and policies of the HAA are fulfilled . Subsection (k) of the
HAA explicitly states that this includes ordering that the application for the project as constituted at
the time the local agency took the initial action determined to be in violation of the HAA be deemed
approved.
4817-7366-7659vB
ALF\09427073 -2 -
Marico Sayoc
Councilmembers
July 21 , 2017
Further, Subsection(/) of the HAA states that ifthe Court finds the Town acted in bad faith
when it disapproved the Project and further failed to carry out the court's order or judgment within
60 days, the Court can impose fines on the Town that the Town must deposit into a housing trust
fund . The fines cannot be paid from funds already dedicated for affordable housing. Given that the
Staff Report clearly states once again that the Project meets all of the Town's objective standards,
there is significant risk of incurring such fines if the Counci l denies the Project again. Such actions
by the Court under the HAA are in addition to the normal remedies a court has to enforce a
peremptory writ of mandate . These include penalties for contempt of court for failing to comply
with the writ. (See Code Civ. Proc. Section 1097.)
Finally, the HAA has been held to establish a protected property right in housing project
applicants. See N . Pacifica. L.L.C. v. City of Pacifica, 234 F.Supp.2d 1053 (N .D . Cal . 2002). Under
the HAA, the Project must be approved unless it fails to comply with applicable objective standards,
conditions, and policies in effect at the time the application was deemed complete. The Town has
been repeatedly advised of this requirement by the Town Attorney, Town Staff, the Applicants'
attorneys, and the State Department of Housing and Community Development. With this
knowledge, a failure to comply with this requirement, as now expressed in a Court Writ, could
constitute a violation of the applicants' Federal Civil Rights, leading to substantial liability for
damages in both State and Federal Courts.
3. Comments and Additional Information re the Staff Report
We are generally in concurrence with the Staff Report, but want to note a few items.
First, there are several references to the Project's needing deviations from the Town's BMP
program guidelines. That is actually based on outdated information . During the application process,
it became clear that actually no such deviations were required . This was memorialized in a letter
from Goldfarb and Lipman to the Town Manager dated March IO, 2016 (Exhibit 19 to 3/30/2016
Planning Commission Hearing, included in Attachment 1 to 8/9/2016 Town Council Special
Meeting).
Second, to the Staff Report's discussion of the meaning of"objective" standards, we would
add the following : The plain meaning of"objective standard" is: "A standard that is based on factual
measurements .... " (http://thelawdictionarv.org/objective-standardD. In the land use context,
California courts have described objective standards as fixed, measurable or quantifiable. (See, e.g.,
Sierra Club v. Napa County Bd. of Supr's. (2012) 205 Cal.App.4th 162, 180 [describing city
ordinance conditions for a lot line adjustment that the parcel contain a minimum of 2,400 square
feet, access rights to a public street and be a minimum of 25 feet wide and deep as "objective
criteria"]; Friends of Westwood. Inc . v. City of Los Angeles (1987) 191 Cal.App.3d 259, 277
[describing city ordinance conditions for a building permit establishing a "comprehensive set of
precise, quantified criteria -i.e ., setbacks must be at least 15 feet, buildings may be no more than 3
stories, and no higher than 50 feet" as satisfying CEQA's ministerial definition of fixed standards
and objective measurements].)
4817 -7366-7659¥8
Al..F\09427073 -3-
Marico Sayoc
Councilmembers
July 21, 2017
In the prior record is a related s tatement from HCD: ·'[B]y right decision making must follow
development standards that are objective, fixed , predictable, clear, quantifiable, written , warrant littl e
to no judgment and should be applied in a manner that affimrntively facilitates development." (AR
11201.)
Finally, the Staff Report summarizes ce1tain proposed conditions to be imposed on the
affordable, senior component of the Project. Eden Housing agrees to these conditions and will meet
all applicable le gal and code requirements for the con struction of the senior affo rd ab le housing .
4. Conc lu sion
The extensive adminisLTative record demonstrates that in order to comply with the Writ, the
Town's North 40 Specific Plan and the Density Bonus Law, the Town Cou ncil mu st rescind the
prior Project denials and approve the Project. State law requires that the HAA be interpreted to
promote housing projects, not to deny them. Thus, Government Code sect.ion 65589.S(t) requires
that "the development standards, conditions. and policies shall be applied t o facilitate and
accommodate development at the density permitted on the site and proposed by the development."
As we are all aware, th e housing cris is in the Bay Area and in th e State genera ll y is
exacerbated by catering to local opposition to projects that full y comply with loca l planning and
zoning. After many years and do zens of public meetings. the Town ad opted a very detailed North 40
Specific Plan (based on a full EIR) to guide development of the North 40 area. Jn spit e of the legal
requirement that such development wou ld be by right, the Town then proceeded to den y a very well-
designed Project that complied fully with all Town requirements , for what the Court agreed were
pure ly s ubjective reasons.
The Town Co uncil acted unlawfully last year in denying th e Project; we urge the Co uncil to
exercise responsible leadership now by approving the Project.
ALF
Cc : Town Clerk
Town Attorney
Cli ents
4617 -7366 -7 659 v8
ALF\09427073
Very truly yours ,
BE~LlNE R COllEN , LLP
-1t1r t
ANDREW L. FABER
E-M ail : andrew.faber@ berliner .com
-4-
July 21, 2017
Mayor Sayoc, Vice Mayor Rennie, and Council Members
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95070
Dear Mayor Sayoc, Vice Mayor Rennie, and Council Members,
Attached are the public benefits slides from our PowerPoint presentation to Council on August 9th, 2016.
Since our application was first submitted in November 2013, we have worked thoughtfully and diligently
not only in meeting all the objective criteria in the Specific Plan, but also to provide additional public
benefits that were not required by the Specific Plan, Specific Plan EIR, or Town of Los Gatos Housing
Element. In summary, our application provides:
• 49 very low-income senior units and one moderate rate unit
• Over $10 million of traffic related improvements (above & beyond EIR requirements)
o Resulting in a 26% reduction in traffic delays at Lark/Los Gatos Boulevard
o Bicycle Lanes from Project Frontage to Los Gatos Creek Trail
• Compliance with State Approved Housing Element
• Unprecedented Voluntary School Agreement
o Worth over $6.3 Million, in addition to paying required SB50 fees
• Over $2.7 million gross revenues annually to Los Gatos, including:
$1.9 Million annually to LGUSD and LG-SJUSD
$800K annually to the Los Gatos General Fund, Plus $462K annually to Santa
Clara County Fire
• Satisfies unmet housing needs in the Town with affordable apartments, multifamily rental and
for sale housing
o Senior Housing
o 84% of residences are 1 or 2-bedroom units, with an overall bedroom count of 1.77
bedrooms average
o Residences range in size from approximately 550 sf to 1,950 sf
o Average residence size 1,393 sf
• New Neighborhood Serving Retail & Restaurants to serve new and existing residents on North
Side of Town
• 14.5 Tons of Diverse Fruits and Vegetables Produced honoring the “Valley of the Hearts Delight”
• Over 6x the required replacement trees
• High Quality execution of Town’s Specific Plan with more open space and trees, less
height, and greater setbacks
In addition, the application far exceeds specific objective criteria as outlined in the Town’s
North 40 Specific Plan, for example:
Requirement Specific Plan
Project
Application
Open Space 30% min 39%
Open Space Publicly Accessible 20% min 85%
Replacement Trees 276 min 1500
2-Story Lark District 15% min 29%
Units (Baseline) 270 237
Units (w/Density Bonus) 365 320
New Commercial 435,000 max 66,000
25’ Res Setback on Lark/LGB 50’ min 65'
Height on Lark/LGB 25’ max 11'-25'
Residential Parking 579 min 581
Mixed Use (TD) Parking 69 min 69
Commercial (TD) Parking 285 min 389
Grosvenor, Eden Housing, and SummerHill Homes remain committed to providing these supplemental
benefits to the Town of Los Gatos upon project approval.
We have been asked whether the Applicants are still willing to make the minor landscaping and
architectural modifications that had been suggested by Councilmembers at the August 16, 2016 Council
meeting. We had followed up to the August 16, 2016 with a letter dated August 25, 2016, agreeing to
certain specific modifications based upon these requests. Based on Council discussion at the September
1st hearing, we are still willing to make many of these minor modifications, and suggest that this should
be accomplished by modifying proposed Condition of Approval Number One to read as follows (A copy
of the relevant portion of that letter, including the referenced exhibits, is attached hereto for your
convenience):
1. APPROVAL: This application shall be completed in accordance with all of the conditions of approval
and in substantial compliance with the approved plans. The approved plans include the minor
architectural and landscaping modifications proposed in the applicant’s letter by reference to
exhibits "B", "E", "F", and "G" of August 25, 2016, which are incorporated herein by this reference.
The Town Council hereby approves these minor modifications as part of this approval, and the
Applicants shall implement them without any further discretionary review or approval from the City
staff, Council or any Commission or Committee. Any other changes or modifications to the
approved plans and/or business operations shall be approved by the Community Development
Director, DRC, or Planning Commission depending on the scope of the changes.
Sincerely,
Don Capobres Linda Mandolini Wendi Baker
Principal President Principal
Harmonie Park Development Eden Housing Harmonie Park Development
Representing Grosvenor Americas Representing SummerHill Homes
Cc: Shelly Neis, Clerk Administrator
Laurel Prevetti, Town Manager
Joel Paulson, Director of Community Development
Rob Shultz, Town Attorney
North 40 Vesting Tentative Map and
Architecture and Site Applications
Don Capobres, Representing Grosvenor Americas
Wendi Baker, SummerHill Homes
Andrea Osgood, Eden Housing
Bill Hirschman, Lexor Builders
August 9, 2016
Town Council Meeting
Unprecedented Project Benefits
Where We are Today
Project Benefit –Senior Affordable Housing
49 very low income senior apartments
and one moderate rate apartment
Project Benefits
Traffic Improvements
Project Benefits
New Bicycle Lanes from the North 40 to the Los Gatos Creek Trail
Project Benefits
Satisfies Town of Los Gatos Housing Element
Project Benefits
Improve School Facilities through Voluntary Contribution
Project Benefits
Project Benefits
Smaller Units, Low Bedroom Count
Project Benefits
New Neighborhood Serving Retail and Market Hall
Fruiting orchards along
Lark Ave
Restaurant
demonstration garden
along South A Street
Project Benefits
Over 14.5 Tons of Fruits and Vegetables
Project Benefits
Going Above and Beyond the Specific Plan
Specific
Plan Proposed
30% min 39%
20% min 85%
276 min 1500
15% min 29%
270 max 237
365 max 320
435,000 max 66,000
50’ min 65’
25’ max 11’-25’
579 min 581
69 min 69
285 min 389
Open Space
Open Space Publicly Accessible
Replacement Trees
2-Story Lark District
Units (Baseline)
Units (w/Density Bonus)
New Commercial
25’ Res Setback on Lark/LGB
Height on Lark/LGB
Residential Parking
Mixed Use (TD) Parking
Commercial (TD) Parking
July 12, 2016
Town of Los Gatos Planning Commission
Applicants:
Don Capobres –Representing Grosvenor
Wendi Baker –SummerHill Home
Andrea Osgood –Eden Housing
William Hirschman –Lexor Builders
Agrarian:
Zach Lewis –Garden 2 Table
Economic:
Timothy Kelly –Keyser Marston Associates
Legal:
Barbara Kautz –Goldfarb & Lipman
Andrew Faber –Berliner Cohen
Architects:
Paula Krugmeier –BAR Architects
Debra Lehtone –BAR Architects
John Thatch –Dahlin Group
Landscape:
Ashley Langworthy –SWA
Melissa Willmann –VDA
Civil:
Chris Ragan –MacKay and Somps
Jacqueline Bays –MacKay and Somps
Traffic:
Katy Cole –Fehr & Peers
Project Benefits
•49 very low income senior units and one moderate rate unit
•Over $10 million of traffic related improvements (above & beyond EIR requirements)
o Resulting in a 26% reduction in traffic delays at Lark/Los Gatos Boulevard
o Bicycle Lanes from Project Frontage to Los Gatos Creek Trail
•Compliance with State Approved Housing Element
•Unprecedented Voluntary School Agreement
•Over $2.7 million gross revenues annually to the Town of Los Gatos, including:
$1.9 Million annually to LGUSD and LG-SJUSD
$800K annually to the Los Gatos General Fund
Plus:$462K annually to Santa Clara County Fire
•Satisfies unmet housing needs in the Town with affordable apartments, multifamily rental and for sale housing
o 84% of residences are 1 or 2 bedroom units, with an overall bedroom count of 1.77 bedrooms average
o Residences range in size from approximately 550 sf to 1,950 sf
o Average residence size 1,393 sf
•New Neighborhood Serving Retail & Restaurants to serve new and existing residents on North Side of Town
•14.5 Tons of Diverse Fruits and Vegetables Produced honoring the “Valley of the Hearts Delight”
•Over 6x the required replacement trees
•High Quality execution of Town’s Specific Plan with more open space and trees, less height, and greater
setbacks
GROSVENOR
August 25,2016
EDEN
HOUSING
SIJMMF.RHILLHON'IB
COMMUNITIES OF DISTINCTION
Joel Paulson
Community Development Director
Town of Los Gatos
110 E.Main St.
Los Gatos,California 95031
Re:Response to Discussion Raised at August 16,2016 Council Meeting-North Forty
This memorandum is in response to manyofthe comments we heard at the August 16,2016 Council
Meeting,during Council deliberations.In orderto best respond tothese precise comments,we had the
meeting transcribed bya third-paity.Attached isthe certified transcription ofthe meeting as Exhibit A
for reference.
One motion byCouncil Member Rennid proposed several modifications tothe architecture as reflected in
ourapplication.Council MemberSayocfdllowed upwith several concerns to this motion:"So thedifficulty
I have in thisparticularmotion is,iA^heii wehave askedfor thesechangesinthe past as a piannhg
commissioner,as a council member,I have alwayswantedtosee whatit is I'm approving.Andwith a
projectsolargeandso controversial andso visible as this,Ihavesignificant reluctance injustsaying.Okay,
and I'm going tohopeforthe best /haveutmostrespectfor ourstaff.I think they would do this,butI also
dont think it's particularlyfair toplacetheburdenofallofthese hearings ontotheirdecbion asthb moves
forward.That'smy biggest impediment."
To address Council Member Sayoc's concern, we have included for the Councils consideration
illustrations "Exhibit B"through "Exhibit G",to be considered by Coundl on September r*(and/or
September 6^)with opportunity for comment and more specific direction which wethen believe could
be approved atan administrative level byStaff and/orthe Consulting Architect without further Council
review:
"Exhibit B"-Architectural elevations along Los Gatos Boulevard with a more "commercial"
appearanceinnature.Footprints remain the same.Exhibit B:
o Includes both previous and potential streetscape from Los Gatos Boulevard for
comparison
o Area simple building formwithlow pitched hippedmetal roofs,strong horizontal lines
o High 10ft ceilings atfirst level and symmetrical arrangement of storefront windows fora
more commercial feel to complement the existingcommercial buildings along Los Gatos
Boulevard
o Threeunitstied together withframedaccent walls andwoodslat fencing tocreate amore
commercial"single facade"while maintaining welcoming definedentries
o High quality materials and finishes-metal roofing,smooth piaster wails,metal siding,
wood slat fencing, aluminum storefront doors and windows
ATTAfcnfelEW!32
011044
.. . . ··-·.··-.. · .. -:-::" .. :L. ---·�-.._ ..... ·'�_:.� ....... ·'t .•. _.,.. · • "Exnibit C!' -Exampl� of,.more traditional architectural elevations along Lark Blvd. Footprints to
remain the same. Elevations could include:
o California Ranch: Providing softer scale with welcoming entry-trellis features that
highlights the home's entry and richness of the landscape. High quality materials and
finishes include crisp horizontal wood siding, smooth plaster walls, wood paneling and
trim accents.
o California Bungalow/Cottage: Soft low pitch roof forms, with well-articulated
architecture with strong horizontal lines and connection to the ground. A generou� entry,
with quality materials and finishes including expan�ive windows tha_t bring the outsi.de in,
horizontal and board and batten wood siding, and a 40 year composition roof.
o Mediterranean-influenced Bungalow: Provides a gentle, pedestrian scale with a
welcoming, gracious entry. A second floor porch accents the entry and cre�tes variety
in the architecture. High quality materials and finishes include smooth plaster walls, and
wood paneling �nd trim accents.•"Exhibit D" -Rowhome Elevation to replace or supplement existing Rowhome Elevation A.
H�ighis. r�m�in b�_low 35'and (ootprinttQrem�in the s�me. Features include:
o . LQ.W.PJt�.�e �_�ipp_e�. ro.ofso. Single s_tory elelJ:lents cre�te a gentle/pedestrian scale_
o Welcoming entries
o Second and third floor balconies that create variety in the architecture
o Hig�:qlJality materials and finishes-:-smooth pla�ter walls, wood paneling and trim accents
•"Exhibit E" -An at-grade floorplan for.Condominium clust�r, resulting in 10 at-grade flats.
o Plan 4 can becomes-an at-grade, one-bedro:om flat at 1,014 SF (Previously 1,608 SF, thr:�
story plan)
o Plans 5, 2, and 3. adju$t accordingly to accommodiite the Plan 4 at-grade flat
o Overall building footprints remain the same
•"Exhibit f.'! -Mar.ket Hall architectural enhancements, including:
East Elevation:
o 11 Market" sign removed. Smaller signage substituted
o qerestory glass softened with louvers
o ��n;apve� gJ�z�� cor11e� �t �E_a,�� r�plac�d "Yith � "p_1:1nc.�.e�" display window
o Ground storv entry centralized with some sliding louvered barn doors on either side.
Passage doors far right and left are kept. Central opening is >15' wide.
o Sun shades tilted so they are visible.
o Spandrel panels between first and 2nd floors changed to wood.
o Added a south facing doorfor our possible florist spilling out near market main entry.
South Elevation:
o Removed corner glass and replaced with display window.
o Enlarged storefront glazing of first opening and softened with louvers.
o Added smaller signs on each stor�front
•"Exhibit G;' -Modified trees at sound wall
o Potential to change evergreens to Brisbane Box
o Buckthorn trees at terminus of R2 -1st St. and R2 -3 rd Street
Further, Section 6.4.1 discusses Specific Plan Administrijtion. It states: "Proposed developments within
the Specific Plan Area will be reviewed purst.�ant to the established Architecture and Site Review and
.. l . J
�-.
approval process as defined within Division 3 of the �oning Ordinance. In addition, proposed � developments will be required to adhere to existing Zoning Ordinance regulations and processes for other
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PLAN VIEW
0 BRISBANE BOX (LOPHOSTEMON CONFERTUS)
EVERGREEN TREE. 40' TO 45' TALL x 22' WIDE
EVERGREEN TREES AT SOUNDWALlJHIGHWAY
I
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w l ~~ij~~~~~~~~~~~~~=:~i ~· ~· ~.
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0 BUCK™ORN( RHMINUS ALATERNUS)
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GROSVENOR W I ... 9
V1 l01 Ol.1L1&
SECTION AT SOUNDWALL
0 15 lO
Lark District
Evergreen Trees at Soundwall
90 . •
I I
From:
Sent:
To:
Council
Sunday, July 23 , 2017 8:55 PM
Janette Judd
Subject: Fw : No. 40 Density Bonus
From: John Shepardson <s hepardsonlaw@me .com >
Sent: Sunday, July 23, 2017 2:19 PM
To: BSpector; Marica Sayoc; Steven Leonardis; Robert Schultz; Council
Subject: Re: No. 40 Density Bonus
On Aug 29, 2016, at 4 :47 AM, John Shepardson <shepardsonlaw@me.com> wrote:
Cut and paste from http://la ndu se law.jmbm.com/2015/01/residential-development-in-
california-new-density-bonus-law-makes-new-affordable-housing-difficult-t.html
Residential Development in California: New Density Bonus Law Makes New Affordable
Housing Difficult to Build
JANUARY 7, 2015
By Matthew Hinks
Governor Brown signed into law on September 27, 2014, AB2222, which amends the State's
Density Bonus Law ("DBL"), Gov't Code§§ 65915, et seq . to establish significant constraints
upon the use of the incentives provided by DBL in connection with certain real estate
developments . The main purpose of AB2222 is to eliminate density bonuses and other
incentives previously available unless the developer agrees to replace pre-existing affordable
units on a one-for-one basis. The impact of the bill will be significant because it will remove the
economic incentive to undertake density bonus projects where existing units are subject to rent
control ordinances or similar restrictions.
JS--The new law is a remedial statue
that must be liberally construed to effectuate its purpose .
Cut & paste from http://www.berliner.com/attorney/andrew-l.-faber
• "lnclusionary Housing Requirements: Still Possible?,"League of California Cities Meeting,
City Attorneys Department, Los Angeles, 2014
• "Reducing the Traffic that Causes the Potholes: California's New 'Regional' Congestion
Management Scheme," American Bar Association Annual Convention, Toronto
Quoting from http://www.paloaltoonline.com/news/2014/01/28/new-density-bonus-law-put-
to-immediate-test
State law entitles developers of affordable housing to seek exemptions from the city and gives
local jurisdictions little leeway to deny these requests . City Planning Director Hillary Gitelman
noted at the Jan. 13 meeting that without a local ordinance, "The field is wide open for people
to request whatever concessions they think of" and the city has a limited ability to say no .
Quoting from http://www.kpbs.org/news/2 016/jun/21/san-diego-boosts-affordable-hou sing-
incen tives/
We need more (housing} units built," said Sean Karafin , director of policy and economic
research for the San Diego Regional Chamber of Commerce. "We need our workforce to find
affordable homes here in San Diego, so they're not looking to Seattle or to Portland or to Austin
to find a more affordable climate ."
Quoting from http://hoodline.com/2015/11/city-planners-push-plan-for-more-density-
afforda bi I ity-across -sf-n eigh borhood s
In 2013, a state court ruled that Napa County couldn't place potentially proh i bitive affordability
requirements on a new development for low-income farm workers .
Quoting from
http s://leginfo .legi slature.ca .go v/faces/b illTe xtClient .xhtm l?bill id=201520160AB744
e} The average construction cost per space, excluding land cost, in a parking structure in the
United States is about $24,000 for aboveground parking and $34,000 for underground parking .
In an affordable housing project with a fixed budget, every $24,000 spent on a required parking
space i s $24,000 less to spend on housing.
(f} The biggest single determinant of vehicle miles traveled and therefore greenhouse gas
emiss ion s is ownership of a private vehicle .
(g) A review of developments funded through the Department of Housing and Community
Development's Transit-Oriented Development Implementation Program (TOD program} shows
that lower income households drive 25 to 30 percent fewer miles when living within one-half
mile of transit than those living in non-TOD program areas. When living within one-quarter mile
of frequent transit, they drove nearly 50 percent less.
2
(j) Consistent with Chapter 488 of the Statues of 2006 (AB 32) and Chapter 728 of the Statutes
of 2008 (SB 375), it is state policy to promote transit-oriented infill development to reduce
greenhouse gas emissions.
(3) (A) An applicant shall be ineligible for a density bonus or any other incentives or concessions
under this section if the housing development is proposed on any property that includes a
parcel or parcels on which rental dwelling units are or, if the dwelling units have been vacated
or demoli shed in the five-year period preceding the application, have been subject to a
recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and
families of lower or very low income; subject to any other form of rent or price control through
a public entity's valid exercise of its police power; or occupied by lower or very low income
households, unle ss the proposed housing development replaces those units, and either of the
following applies:
(i) The proposed housing development, inclusive of the units replaced pursuant to this
paragraph, contains affordable units at the percentages set forth in subdivision (b).
(ii) Each unit in the development, exclusive of a manager's unit or units, is affordable to, and
occupied by, either a lower or very low income household.
(B) For the purposes of this paragraph, "replace" shall mean either of the following :
(i) If any dwelling units described in subparagraph (A) are occupied on the date of application,
the proposed housing development shall provide at least the same number of units of
equivalent size or type, or both, to be made available at affordable rent or affordable housing
cost to, and occupied by, persons and families in the same or lower income category as those
households in occupancy. For unoccupied dwelling units described in subparagraph (A) in a
development with occupied units, the proposed housing development shall provide units of
equivalent size or type, or both, to be made available at affordable rent or affordable housing
cost to, and occupied by, persons and families in the same or lower income category in the
same proportion of affordability as the occupied units. All replacement calculations resulting in
fractional units shall be rounded up to the next whole number. If the replacement units will be
rental dwelling units, these units shall be subject to a recorded affordability restriction for at
least 55 years. If the proposed development is for-sale units, the units replaced shall be subject
to paragraph (2).
(ii) If all dwelling units described in subparagraph (A) have been vacated or demolished within
the five-year period preceding the application, the propose d housing development shall
provide at lea st the same number of units of equivalent size or type, or both, as existed at the
highpoint of those units in the five-year period preceding the application to be made available
at affordable rent or affordable housing cost to, and occupied by, person s and families in the
sa me or lower income category as those persons and families in occupancy at that time, if
known. If the incomes of the persons and families in occupancy at the highpoint is not known,
then one-half of the required units shall be made available at affordable rent or affordable
housing cost to, and occupied by, very low income persons and families and one-half of the
required units sha ll be made available for rent at affordable housing costs to, and occupied by,
low-income person s and familie s. All replacement calculations re sulting in fractional units shall
be rounded up to the next whole number. If the replacement units will be rental dwelling units,
3
these unit s shall be subject to a recorded affordability restriction for at least 55 years. If the
propo se d development is for-sale units, the units replaced shall be subject to paragraph (2).
(C) Paragraph (3) of subdivision (c) does not apply to an applicant seeking a density bonus for a
propo se d housing development if his or her application was submitted to, or processed by , a
city , county , or city and county before January 1, 2015.
JS
Sent from my iPhone
John Shepard son, Esq .
shepardson law@me.com
59 N . San ta Cruz Avenue, Suite Q
Los Gatos, CA 95030
T : (408) 395-3701
F: (408) 395-0112
CONFIDENTIALITY NOTICE : the inform ation contained in this e-mail, including an y attachmen t(s), i s confidential information that may b e privileged and exempt from
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distribution or copying of t h is message is strictly prohibited. If you have received this message in error, please notify Marti H. Cas t il lo at the Law Office of JOHN A. SHEPARDSON
imm ediately by calling (408) 395-3701 and by sending a r eturn e -mail; delete this message; and destroy all copies, including attachments. Thank you.
IRS CIRCULAR 230 DISCLOSURE To ensure complian ce with new requirements of the Internal Revenue Service, we inform you that, to the extent any advice r elating to a
Federal tax iss ue is contained in this co mmunication, includ ing in any attachments, it was not written or intended t o be used, and cannot be used, for the purpose of (a)
avoiding any tax related penalties that may be imposed on you or any other person under the Internal Revenue Code, or (b) promoting, marketing or recommending to an other
p erson any tran saction or matter add ressed in this communication.
4
From:
Sent:
To:
Council
Sunday, July 23, 2017 8:54 PM
Janette Judd
Subject: Fw: N . 40 (Density Bonus)
From : John Shepardson <shepardson la w@me.com>
Sent: Sunday, July 23, 2017 2:19 PM
To: BSpector; Marico Sayoc; Steven Leonardis; Council; Robert Schultz
Subject: Re: N. 40 (Density Bonus)
On Aug 30, 2016, at 12:04 AM, John Shepardson <shepardsonlaw@me.com> wrote:
Quoting from https://l egistarweb-
production.s3.amazonaws.com/uploads/attachment/pdf/23986/Attachment 34 -
Letter from Remy Moose Manley received August 26 2016.pdf
Section 65915, subdivision (c)(3)(C), provides that the replacement housing requirement
"does not apply to an applicant seeking a density bonus for a proposed housing
development if his or her application was submitted to , or processed by, a city, county, or
city and county before January 1, 2015." (Italics added.) This provision does not say that
the "application" must have been expressly for the bonus, rather than for the housing
development as a whole. As development applications routinely do evolve over time,
often over months or years , before being finally approved, it is reasonable to interpret this
provision as referring to the submittal or processing of the housing development
application.
JS Comments: The statute was amended in way that restricted developers from obtaining
density bonuses . An additional hurdle
was created . This remedial legislation must thus be LIBERALLY CONSTRUED to effectuate its
purpose . The liberal
construction does not cut in favor of the above legal analysis and in fact, the author makes no
mention of the statutory construction rule that
remedial statutes must be liberally construed to effectuate the purpose stated. I submit a more
reasonable interpretation is
that there must be express application for a density bonus. Since one did not occur, until after
1/1/2015, the developer is
subject to the requirements of the remedial legislation .
Moreover, the project submitted in 2013 is admittedly different than the one now proposed.
1
The City of Lo s Angeles appears to interpret the statute different from Mr. Manley a nd more in
light
with the position I'm asserting here.
Granted , I'm no expert in land use law, so bear that in mind, in considering the above points .
John Shepardson , Esq .
(408) 966-9709
John She pardson, Esq.
shepardsonlaw@me.com
59 N. Sa nta Cr uz Aven ue, Suite Q
Los Gatos, CA 95030
T : {408) 395-3701
F: (408) 395 -0112
CONFIDENTIALITY NOTICE : the information contained in this e-mail, including any attachment(s), i s confidential infor mation that may be privileged and exempt from
disclosure under applicable law. If the reader of this message is not the intended recipient, or if you received t h is message in error, then any d i rect or indirect d isclosure,
distribution or copying of this message is strictly prohibited. If you have received this message in error, p lease notify Marti H. Castillo at the La w Office of JOHN A . SHEPARDSON
im med iately by calling (408) 395-3701 and by sending a return e-mai l; delete this mess age ; and destroy all copies, including attachments. Thank you.
IRS Cl RCULAR 230 DISCLOSURE To ensure compliance with n ew requirements of the Internal Revenue Servi ce, w e inform you t hat, to the extent any advic e re lating to a
Federal tax issue is contained in this communi cation, incl uding in any attachments, it was not written or intended to be used , and cannot be used, for the purpose of (a)
avoiding any tax related pena lties that may be i mposed on you or any other person under the Internal Revenue Code, or (bl promoti ng, marketing or recommend ing to another
person any transaction or matter addressed in this communication.
2
From: John Shepardson [ma ilto:shepardson law @me.com]
Sent: Sunday, July 23, 2017 2:20 PM
To: BSpector; Marica Sayoc; Steven Leonardis; Rob Rennie; Marcia Jensen; Council; Laurel Prevetti
Subject: Fwd: N. 40 (Good Sam Expansion)
Begin forwarded message:
From: John Shepardson <shepardsonlaw@me .com>
Subject: N. 40 (Good Sam Expansion)
Date: August 31 , 2016 at 10:39:58 PM PDT
To: BSp ector@losgatosca.gov, msayoc@losgatosca.gov, Sleonardis@losgatosca .gov,
rrennie@losgatosca.gov, MJensen@losgatosca.gov, Council@losgatosca .gov,
LPrevetti@losgatosca .gov
7 13,700 feet of commercial and parking space o n 9.3 acres.
John Shepard so n, Es q.
Sent from my iPhone
John Shepardson, Esq.
sh.:pardson law1a m..: . .:0111
59 N. Santa Crut: Avenue, S uite Q
Los G ato s, CA 95030
T : ( 408) 395-3 70 I
F: (408) 395-0112
CONFID ENT IA LI TY NOTICE: the in fon n ation conta ined in this e-mail, including any attachment(s), is confidential infonnation that may be pr ivi leged
and exempt from discl osure under applicable law. If the reader of this message is not the intended recipient, o r if you received th is message in e r ror. the n
any di rect or ind ire ct disclosure, d ist ribution o r copyi ng of th is message is stri ct ly prohibi ted. If you have received th is message in e rro r, please n ot i fy
Mani H. Castillo a t the Law Office of .JO H N A. S HEPARDSON immediately by calling (408 ) 395-3701 and by sendin g a return e-mai l; cie lete
th is me ssage; and destroy all copies, includi ng allachme nt s. Thank you.
IRS CIRCULA R 230 DI SCLOSURE To ensure compliance w ith new requirements o f the Int ernal Re venue Serv ice , we inform you that , to the e xtent an y
ad vice relating to a Federa l tax issue is co nta ined in this c o mmunicati o n. includ ing in any allachments, it was not wr itten or intended to be used, a nd cannot
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pro moting , marke ti ng or recommending lo a nothe r person any transactio n or matter addressed in th is communication.
From:
Sent:
To:
Council
Sunday, July 23 , 2017 8:53 PM
Janette Judd
Subject: Fw : N. 40 (S uggested Findings--LOAD UP)
From: John Shepardson <shepard sonlaw@ m e .com >
Sent: Sunday, July 23, 2017 2 :22 PM
To: Marica Sayoc ; Rob Rennie; Steven Leonardis; Marcia Jensen; BSpector; Council; Robert Schultz; Laurel Prevetti
Subject: Re: N. 40 (Suggested Findings--LOAD UP)
On Sep 3, 2016, at 10:34 AM, John Shepardson <shepardsonlaw@m e.com> wrote:
Marico:
Speaking as a lawyer here :
Since the developer may seek attack the decision, you
might want LOAD UP THE FINDINGS with every rea sonable basis you
can for a judge to hang her hat on. This can also
discourage the developer from filing suit and
provide negotiation power.
Possibilities:
1. BMP.
2. Replacement housing-perhaps incorporate my stuff and Angelia's.
3. Lots of objective criteria not complied with.
4. Hillside views.
5. Inconsistencies with the specific plan.
6. Grading i ss ues?
7. Wasn't Lark supposed to be low density?
8. Econ analysis.
9. Entire record .
10. Overwhelming public comments against . Evidence objectively
not the look and feel of LG?
Perhaps create a script of all the findings to read into the record. Detailed.
So the judge knows the precise grounds.
1
John Shepard son , Esq.
John Shepardson, Esq.
shepardso nla w@ m e.com
59 N. Santa Cruz Avenue, Suite Q
Los Gatos, CA 95030
T: (408) 395-3701
F: (408) 395 -0112
CONFIDENTIALITY NOTICE : the information con tained in this e-mail, including any attachment (s), is confidential infor mati on that may be privileged and exempt from
disclosure under applicable law. If the reader of t his message is not the intended re cipient, or if you received this message in error, then any direct or indirect disclosure,
distribution or copying of this message is strictly prohibited. If you have received this message in error, please notify Marti H. Castillo at the Law Office of JOHN A. SHEPARDSON
i mmediately by calling (408) 395 -3701 and by sending a return e-mail; delete this message ; and destroy all copies, including attachments. Thank you .
IRS CIRCULAR 230 DISCLOSUR E To ensure compliance with new requirements of the Internal Revenue Service, we inform you that, to the extent any advice relating to a
Federal tax issue is contained in this communication, including in any attachments, it was not written or intend ed to be used, and cannot be used , for the purpose of (a)
avoiding any tax related penalties that may be imposed on you or any other person under the Internal Revenue Code, or (b) promoting, marketing or recommending to another
person an y transact ion or matter addressed in this communicat ion.
2
From:
Sent:
To:
Council
Sunday, July 23 , 2017 8:52 PM
Janette Judd
Subject: Fw : N. 40 (Where did all the specific findings go, long time ago ... )????????????
From: John Shepardson <shepardsonlaw@me .com>
Sent: Sunday, July 23 , 2017 2:23 PM
To: BSpector; Marico Sayoc; Steven Leonardis; Robert Schultz; Council; Marcia Jensen ; Rob Rennie
Subject: Re: N. 40 (Where did all the specific findings go, long time ago ... )????????????
On Sep 6, 2016, at 10:42 PM, John Shepardson <shepardsonlaw@me.com> wrote:
Cut & paste from http://plannersweb .com/wp-c ontent/uploads/2012/08/598.pdf
<pagelimage256.png>
Quoting from http://blog.aklandlaw.com/2016/07 /articles/planning-zoning-development/fifth-
ap pellat e-di strict-defers-to-municipality-when -reviewing-find ings-of-g eneral-plan-con si stency/
The la nJ u,t· daim i.:-rcd th.:: c pn-i,rcnc) pf the ~hl1ppi n g ccntc1 1.uth the N PP. giH.1 ; thal it W<l ' ,jgn ifa::Jnt ly larger th.m rhc
a l'reag t' r,mgc contained \\·i rhi n the !\PP. llH.' C<•u rt c ited rhc c~ta hli:;hcd mlc that the con:<i.,t,·ncy <lc1c:-: no t req uire exact
<.:onfonn11~ .. hut g<.:ncr<1I uun patib il iry. Sc1111 ow1 I !ii/., H o111cm111 c1:' A ~sociu1io11 1·. Ci1y u(Oak/a11d ( 199 3) 23 C ul. •\pp.4th 704
J ll<l FriL·111/" o (La'.!.0011 V,1/lcy v. Citi.: t1( Va cm •ille i20()7) 15-l Ca l.Ap p.4th 11 07. The court a bo noted that a c ity or county wa !'.
c 11 11 tkd to d eferenc e \\hen makin g t h o<'' ti ndin g
http://www .tandfonline.com/doi/abs/10.1080/00947598.1974.10394591
Miller and Starr Cal iforn ia Real Estate 4th
,June 2016 Update
By Members of the Firm of Miller Starr Regalia
Chapter 21 . Land Use , Plann ing , and Zoning Regulations
F. Judi cia l Review of Planning and Land Use Decisions
1
§ 21:35. Local agency's findings (emphases added)
Local agency must make findings. When considering a proposed development
approva l , the local legislative body must ho ld a hearing in which evidence is presented ,
and must render findings that are supported by the evidence. These findings
must be sufficient to apprise the parties of whether and on
what basis they should seek judicial review, and they must
be sufficient to apprise a reviewing court of the rationale
and basis for the decision of the legislative body.1 Implicit in the
concept of judic ial review of adjudicatory administrative decisions is the requirement of
findings sufficient to "bridge the analytic gap between the raw evidence and ultimate
decision or order."2
F indings when a density reduction is required for a housing development. Certain
findings must be made upon denial of affordable housing projects or hous ing
developments that comply with all applicable objective general plan and zoning
standards and criteria .3
A local agency may not reject a proposed housing development affordable to very low-,
low-, or moderate-income households without specific findings
as specified by the Code which are supported by
substantial evidence .4 Nor may a local agency reject, or require a reduction of density
for, any housing development project that complies with applicable objective general
plan and zoning standards and criteria in effect when the application was complete,
unless it makes specific findings as required by the Code.5 The agency must adopt
specific written findings supported by substantial evidence that the proposed project
would otherwise have a specific, adverse impact on the public health or safety and that
there is no feasible method for m itigating or avoiding the adverse impact except by a
rejectio n of the project or a reduction in density.6 The project applicant or any person
who wou ld be eligible to apply for residency in the development is authorized to bring an
action to e nforce the provisions of the statute.7The authorized action is one for a writ of
ad ministrative mandamus , and expedited preparation and filing of the administrative
record by the agency is required.8 When an action is brought to enforce the statute's
requirements and the court determines that the agency has disapproved a project or
made it infeasible without making the required findings supported by substantial
evidence , the court shall order compliance by the local entity within 60 days , incl uding
an order that the local agency take action on the project.9
If the cou rt determines that its order or j udgment has not been carried out within 60
days, it may issue further enforcement orders, including but not limited to an order
vaca ting the local agency's disapproval of the project , in which case the application
a long with any standard conditions determined by the court to be generally imposed by
the agency on similar projects shall be deemed approved .10 If the court finds the local
agency acted in bad faith in disapproving or conditioning the project or failing to comply
with court's order or judgment within the 60-day period , it may impose fines as
specified . 11
2
The public agency has the burden of proof in any action challenging the agency's
findings.12 To show a "specific , adverse impact" justifying disapproval or density
reduction of an objectively complying project, it is the public entity's burden to show the
project would have a significant , quantifiable, direct and unavoidable impact based on
objective , identified written public health or safety standards, policies or conditions in
effect when the application was complete.13
Comment:
These requirements can render reduced density projects legally infeasible alternatives
for purposes of consideration in project EIRs under CEQA.14
EffectiYe: January 1, 2016
West's Ann.Cal.Gov.Code§ 65589.5
§ 65589.5. Legislative findings and declarations; housing development
projects affordable to very low, low-, or moderate-income households;
emergency shelters; vvritten findings required prior to disapproval or
conditional approval; compliance with other laws; definitions;
enforcement; short title
Currentness
(a) The Legislature finds and declares all of the following :
(1) The lack of housing, including emergency shelters, is a critical problem that
threatens the economic, environmental, and social quality of life in California.
(2) California housing has become the most expensive in the nation. The excessive cost
of the state 's housing supply is partially caused by activities and policies of many local
governments that limit the approval of housing , increase the cost of land for housing ,
a nd require that high fees and exactions be paid by producers of housing.
(3) Among the consequences of those actions are discrimination against low-income
and minority households, lack of housing to support employment growth, imbalance in
jobs and housing , reduced mobility , urban sprawl , excessive commuting, and air quality
deterioration .
( 4) Many lo ca l governments do not give adequate attention to the economic,
environmental , and social costs of decisions that result in disapproval of housing
projects , reduction in density of housing projects , and excessive standards for housing
projects .
(b) It is the policy of the state that a local government not reject or make infeasible
housing developments , including emergency shelters , that contribute to meeting the
need determined pursuant to this article without a thorough analysis of the economic,
social , and environmental effects of the action and without complying with subdivision
(d).
3
(c) The Legislature also recognizes that premature and unnecessary development of
agricultural lands for urban uses continues to have adverse effects on the availability of
those lands for food and fiber production and on the economy of the state. Furthermore ,
it is the policy of the state that development should be guided away from prime
agricultural lands ; therefore, in implementing this section, local jurisdictions should
encourage , to the maximum extent practicable , in filling existing urban areas.
(d) A local agency shall not disapprove a housing development project, including
1Jarmworker housing as defined in s ubdivision ih2 of Section 50199.7 of the Health and
Safety Code, for ve1y low, low-, or moderate-income households, or an emergency
shelter, or condition approval in a manner that renders the project infeasible for
development for the use of very low, low-, or moderate-income households, or an
emergency shelter, including through the use of design review standards , unless it
makes written findings, based upon substantial evidence in the record, as to one of the
following :
(1) The jurisdiction has adopted a housing element pursuant to this article that has been
revised in accordance with Sectio n 6558 8 , is in substantial compliance with this article,
and the jurisdiction has met or exceeded its share of the regional housing need
allocation pursuant to Section 65584 for the planning period for the income category
proposed for the housing development project, provided that any disapproval or
conditional approval shall not be based on any of the reasons prohibited by Section
65008 . If the housing development project includes a mix of income categories, and the
jurisdiction has not met or exceeded its share of the regional housing need for one or
more of those categories , then this paragraph shall not be used to disapprove or
conditionally approve the project. The share of the regional housing need met by the
jurisdiction shall be calculated consistently with the forms and definitions that may be
adopted by the Department of Housing and Community Development pursuant
to Section 65400 . In the case of an emergency shelter, the jurisdiction shall have met or
exceeded the need for emergency shelter, as identified pursuant to paragraph (7) of
subdivis ion (a) of Secti on 6558 3 . Any disapproval or conditional approval pursuant to
this paragraph shall be in accordance with applicable law, rule, or standards.
(2) The development project or emergency shelter as proposed would have a specific,
adverse impact upon the public health or safety, and there is no feasible method to
satisfactorily mitigate or avoid the specific adverse impact without rendering the
development unaffordable to low-and moderate-income households or rendering the
development of the emergency shelter financially infeasible. As used in this paragraph ,
a "specific , adverse impact" means a significant, quantifiable , direct, and unavoidable
impact, based on objective, identified written public health or safety standards , policies,
or conditions as they existed on the date the application was deemed complete.
Inconsistency with the zoning ordinance or general plan land use designation shall not
constitute a specific , adverse impact upon the public health or safety.
(3) The denial of the project or imposition of conditions is required in order to comply
with specific state or federal law, and there is no feasible method to comply without
rendering the development unaffordable to low-and moderate-income households or
rendering the development of the emergency shelter financially infeasible.
4
( 4) The d evelopment project or emergency shelter is proposed on land zoned for
agri culture or resource preservation that is surrounded on at least two sides by land
being used for agricultural or resource preservation purposes , or which does not have
adequate water or wastewater fa c ilities to serve the project.
(5) The de velopment project or emergency shelter is inconsistent with both the
jurisdiction's zoning ordinance and general plan land use designation as specified in any
element of the g en e ral plan as it existed on the date the application was deemed
complete , and the jurisdiction has adopted a revised housing element in accordance
with Section 65588 that is in substantial compliance with this article .
(A) This paragraph cannot be utilized to disapprove or conditionally approve a housing
development project if the development project is proposed on a site that is identified as
suitable or available for very low , low-, or moderate-income households in the
jurisdiction's housing element , and consistent with the density specified in the housing
element, even though it is inconsistent with both the jurisdiction's zoning ordinance and
general plan land use designation .
(B) If the local agency has failed to identify in the inventory of land in its housing
element sites that can be developed for housing within the planning period and are
sufficient to provide for the jurisdiction's share of the regional housing need for all
income levels pursuant to Secti o n 6558 4, then this paragraph shall not be utilized to
disapprove or conditionally approve a housing development project proposed for a site
designated in any element of the general plan for residential uses or designated in any
element of the general plan for commercial uses if residential uses are permitted or
c onditionally permitted within commercial designations . In any action in court, the
burd en of pro of shall be on the local agency to show that its housing element does
id entify ad equate sites with appropriate zoning and development standards and with
se rvi ces and facilities to accommodate the local agency's share of the regional housing
need for the very low and low-income categories .
(C) If the local agency has failed to identify a zone or zones where emergency shelters
are allowed as a permitted use without a conditional use or other discretionary permit ,
has fai le d to demonstrate that the identifi ed zone or zones include sufficient capacity to
accommodat e the need for emergency shelter identified in paragra ph (7) of su bdivis io n
(a) of Section 65583 , or has failed to demonstrate that the identified zone or zones can
accommodate at least one emergency shelter, as required by parag raph ( 4) of
s ubdivis ion (a) of Secti o n 65583, then this paragraph shall not be utili zed to disapprove
or conditionally approve an emergency shelter proposed for a site designated in any
e lem e nt of th e general plan for industrial , commercial , or multifamily residential uses . In
a ny action in court , the burden of proof shall be on the local agency to show that its
housing el e ment does satisfy the requirements of pa ragra ph (4) of su bdi visio n (a) of
Section 65583.
( e) Nothing in this section shall be construed to relieve the local agency from complying
ith the !'0r c,e~tion manciqement proa ram required by Chapter 2.6 (commencing
ith Section 65088) of Division 1 of Title 7 or the California Coastal Act of
,76 (Division 20 (commencing with Secti o n 30000) of th e Pu b lic Reso urces Code ).
Neither sh all anything in this section be construed to relieve the local agency from
making one or more of the findings required pursuant to Secti on 2 108 1 of th e Pu bl ic
5
Reso urce s Code or otherwise complying with the California Environmental Quality Act
(Di v ision 13 (commencing with Section 21000) of the Public Resou rces Code).
(f)(1) Nothing in this section shall be construed to prohibit a local agency from requiring
the development project to comply with objective , quantifiable , written development
standards, conditions, and policies appropriate to , and consistent with , meeting the
jurisdiction's share of the regional housing need pursuant to Section 65584 . However,
the development standards , conditions , and policies shall be applied to facilitate and
accommodate development at the density permitted on the site and proposed by the
development.
(2) Nothing in this section shall be construed to prohibit a local agency from requiri ng an
e mergency shelter project to comply with objective, quantifiable, written development
stand ards, conditi ons, and policies that are consistent with paragraph ( 4) of subdivision
(a ) of Sect io n 6558 3 and appropriate to , and consistent with, meeting the jurisdiction's
need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of
Sectio n 65583 . Howev er, the development standards, conditions , and policies shall be
applied by the local agency to facilitate and accommodate the development of the
emergency shelter project.
(3) This section does not prohibit a local agency from imposing fees and other exactions
otherwise authorized by law that are essential to provide necessary public services and
facilities to the development project or emergency shelter.
(g) This section shall be applicable to charter cities because the Legislature finds that
the la ck of housing , including emergency shelter, is a critical statewide problem.
(h) The following definitions apply for the purposes of this section:
(1) "Feasible " means capable of being accomplished in a successful manner within a
reasonable period of time , taking into account economic, environmental, social , and
technological factors.
(2) "Housing development project" means a use consisting of any of the following:
(A) Residential units only .
(B) Mixed-use developments consisting of residential and nonresidential uses in which
nonresidential uses are limited to neighborhood commercial uses and to the first floor of
b uildings that are two or more stories . As used in this paragraph , "neighborhood
commercial " means small-scale general or specialty stores that furnish goods and
services primarily to residents of the neighborhood.
(C) Transitional housing or supportive housing .
(3) "Housing for very low, low-, or moderate-income households" means that either (A)
at least 20 percent of the total units shall be sold or rented to lower income households,
as defined in Secti o n 50079 .5 of the Health and Safety Code, or (B) 100 percent of the
tnits shall be sold or rented to Q..ersons and fa m ilie s o f m ode rate in com e as defined
Section 5009 3 of the He alth and Safety Code , or perso n s and fam ili es of middle
·Jome , as defined in Secti o n 6 5008of this code . Housing units targeted for lower
6
income households shall be made available at a monthly housing cost that does not
exceed 30 percent of 60 percent of area median income with adjustments for household
size made in accordance with the adjustment factors on which the lower income
eligibility limits are based . Housing units targeted for persons and families of moderate
income shall be made available at a monthly housing cost that does not exceed 30
percent of 100 percent of area median income with adjustments for household size
made in accordance with the adjustment factors on which the moderate-income
eligibility limits are based.
(4) "Area median income " means area median income as periodically established by the
Department of Housing and Community Development pursuant to Section 50093 of the
He alth and Safety Code . The developer shall provide sufficient legal commitments to
ensure continued availability of units for very low or low-income households in
accordance with the provisions of this subdivision for 30 years.
(5) "Disapprove the development project" includes any instance in which a local agency
does either of the following :
(A ) Votes on a proposed housing development project application and the application is
disapproved .
(B ) Fails to comply with the time periods specified in subdivision (a) of Section 65950.
An extension of time pursuant to Article 5 (commencing with Section 65950) shall be
deemed to be an extension of time pursuant to this paragraph.
(i) If any city, county, or city and county denies approval or imposes restrictions ,
including design changes, a reduction of allowable densities or the percentage of a lot
that may be occupied by a building or structure under the applicable planning and
zoning in force at the time the application is deemed complete pursuant to Section
65943, that have a substantial adverse effect on the viability or affordability of a housing
development for very low, low-, or moderate-income households, and the denial of the
development or the imposition of restrictions on the development is the subject of a
court action wh ic h challenges the denial , then the burden of proof shall be on the local
legislative body to show that its decision is consistent with the findings as described in
subdivision (d) and that the findings are supported by substantial evidence in the record.
(j) When a proposed housing development project complies with applicable, objective
general plan and zoning standards and criteria , including design review standards, in
effect at the time that the housing development project's application is determined to be
co mplete , but the local agency proposes to disapprove the project or to approve it upon
th e condition that the project be developed at a lower density, the local agency shall
base its decision regarding the proposed housing development project upon written
findings supported by substantial evidence on the record that both of the following
conditions exist:
( 1) The housing development project would have a specific, adverse impact upon the
public health or safety unless the project is disapproved or approved upon the condition
that the project be developed at a lower density. As used in this paragraph, a "specific ,
adverse impact" means a significant , quantifiable, direct, and unavoidable impact,
based on objective, identified written public health or safety standards , policies, or
conditions as they existed on the date the application was deemed complete.
7
(2) There is no feasible method to satisfactorily mitigate or avoid the adverse impact
identified pursuant to paragraph (1 ), other than the disapproval of the housing
deve lopment project or the approval of the project upon the condition that it be
deve loped at a lower density .
(k) The applicant or any person who would be eligible to apply for residency in the
~evelopment or emergency shelter may bring an action to enforce this section. If_ in any
action brought to enforce the provisions of this section, a court finds that the local
agency disapproved a project or conditioned its approval in a manner rendering it
infeasib le for the development of an emergency shelter, or housing for very low , low-, or
moderate-income households , including farmworker housing , without making the
find in gs required by this section or without making sufficient findings supported by
substantia l evidence , the court shall issue an order or judgment compelling compliance
with this sect ion within 60 days , including , but not limited to , an order that the local
agency take action on the development project or emergency shelter. The court shall
retain jurisdiction to ensure that its order or judgment is carried out and shall award
reasonable attorney's fe es and costs of suit to the plaintiff or petitioner who proposed
the housing deve lopment or emergency shelter, except under extraordinary
ci rcumstances in which the cou rt finds that awarding fees would not further the
purposes of this section . If the co urt determ ines that its order or judgment has not been
carried out within 60 days , the court may iss ue further orders as provided by law to
ensure that the purposes and policies of this section are fulfilled , including , but not
limited to , an order to vacate the decision of the local agency, in which case the
a pplication for the project , as constituted at the time the local agency took the initial
action determined to be in violation of this section, along with any standard conditions
dete rmined by the court to be generally imposed by the local agency on similar projects,
shall be deemed approved unless the applicant consents to a different decision or
action by the local agency.
(/) If the court finds that the local agency (1) acted in bad faith when it disapproved or
conditionally approved the housing development or emergency shelter in violation of
this section and (2) failed to carry out the court's order or judgment within 60 days as
~escribed in subdivision (k), the courti in addition to any other remedies provided by this
section , may impose fines upon the local agency that the local agency shall be required
to deposit into a housing trust fund . Fines shall not be paid from funds that are already
dedicated for affordable housing , including , but not limited to, redevelopment or low-
and moderate-income housing funds and federal HOME and CDBG funds. The local
agency sha ll commi t the money in the trust fund within five years for the sole purpose of
financing newly constructed housing units affordable to extremely low , very low, or low-
income households. For purposes of this section , "bad faith " shall mean an action that is
frivolous or otherwise entire ly without merit.
(m ) Any actio n brought to enforce the provisions of this section shall be brought
pursuant to Section 1094 .5 of the Code of Civil Pro ce dure, and the loca l agency shall
prepare and certify the record of proceedings in accordance with subd ivision (c) of
Sect ion 1094.6 of the Code of Civil Pro cedu re no later than 30 days after the petition is
served , provided that the cost of preparation of the record shall be borne by the local
agency. Upon entry of the trial court 's order, a party shall, in order to obtain appellate
review of the order, file a petition within 20 days after service upon it of a written notice
of th e entry of the order, or within such further time not exceeding an additional 20 days
8
as the trial court may for good cause allow . If the local agency appeals the judgment of
the trial court , the local agency shall post a bond, in an amount to be determined by the
court, to the benefit of the plaintiff if the plaintiff is the project applicant.
(n) In any action, the record of the proceedings before the local agency shall be filed as
expeditiously as possible and, notwithstanding Section 1094.6 of the Code of Civil
Procedure or subdivision (m) of this section, all or part of the record may be prepared
( 1) by the petitioner with the petition or petitioner's points and authorities, (2) by the
respondent with respondent's points and authorities, (3) after payment of costs by the
petitioner, or (4) as otherwise directed by the court. If the expense of preparing the
record ha s been borne by the petitioner and the petitioner is the prevailing party, the
expense shall be taxable as costs.
(o) This section shall be known, and may be cited , as the Housing Accountability Act.
Credits
(Added by Stats.1982 , c. 1438, § 2. Amended by Stats.1990, c. 1439 (S.B.2011 ), §
1; Stats.1991, c.100(S.B.162),§1, eff. July 1 , 1991; Stats.1992, c . 1356 (S .B.1711), §
1; Stats.1994, c. 896 (A.B.3735), § 2; Stats .1999, c. 968 (S .B .948), § 6; Stats .2001 , c.
237 (A.B .369), § 1; Sta t s.2002, c. 147 (S .B .1721),§1; Stats.2003 , c. 793 (S.B .619), §
3; Stats.200 4 , c. 724 (A.B.2348), § 4; Stats.2005, c. 601 (S.B.575), § 1; Stats.2006, c.
888 (A.B.2511 ), § 5; Stats .2007 , c. 633 (S.B.2), § 4; Stats .2010, c. 610 (A.B.2762), §
2; Stats .2015 , c . 349 (A.B .1516), § 2, eff. Jan. 1, 2016.)
John Shepardson, Esq.
sheoardsonlaw@me.com
59 N. Santa Cruz Avenue, Suite Q
Los Gatos, CA 95030
T: (408) 395-3701
F: (408) 395-0112
CO NFIDENTIALITY NOTICE : the information contained in t his e-mail, including any attachment(s), is confidential information that may be privileged and exempt from
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distribution or copyin g of this message is strictly prohibited. If you have received this message in error, please notify Marti H. Castillo at the Law Office of JOHN A. SHEPARDSON
immediately by call ing (408) 395-3701 and by sending a return e-m ail; delete this message; and destroy all copies, including attachments. Thank you.
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person any transaction or matter addressed in this communication.
9
~~
SILICON VALLEY,
LEADER§H~UP
2001 Gateway Place, Suite 101E
San Jose, California 95 110
('08)501·786' svlg.org
CARL GUARDINO
President 4 CEO
Board Officers:
GREG BECKER, Char
SVB Financial Group
STEVE MILLIGAN, Vice Chair
Western D191tal Corporation
JOHN ADAMS. Sec<etarylTreasurer
Wells FNgo Bank
TOM WERNER. Former Cha<
Sun Power
AART DE GEUS. Former Chair
Synopsys
STEVE BERGLUND. Former Chair
Trimble Inc
Board Members:
MARTIN ANSTICE
Lam Reseach
SHELL YE ARCHAMBEAU
MericSteam
GEORGE 81..UMENTHAI.
Un1Versity of Califorma. Santa Cruz
JOHN BOLAND
KOED
CHRIS BOYD
Kaiser Permanente
RAM 8RANITZKY
Sapphore Venues
GARY BRIGGS
Faceboolc
BILL COLEMAN
Verltas T eohnobgies
CHRISTOPHER DA WES
Stanlord Children's Health
MICHAEL ENGH. S.J.
Santa Clara University
TOM FALLON
lnfinera
HANK FORE
Comcast
KEN GOLDMAN
Yahoo!
RAQUEL GONZALEZ
Bank of America
DOUG GRAHAM
Lockheed Martin
LAURAGUIO
IBM
JAMES GUTIERREZ
lnsikt
STEFAN HECK
Nauto
JEFFREY JOHNSON
San FranciS<O Chronicle
MICHAEL JOHNSON
Regional Medocal Center San Jose
AARIF KHAKOO
AMGEN
ERIC KUTCHER
McK11sey 4 Company
ENRIQUE LORES
HP Inc .
MATT MAHAN
Brigade
TARKA N MANER
Nexenta
KE N MCNEELY
AT&T
BEN MINICUCCI
Alaska Airlines
KEVIN MURAI
Synne>
MARY PAPAZIAN
San Jose Slate University
JES PEDERSEN
Webcor Buildefs
KJM POLESE
ClearSteet
JOSEPH RUGGIERO
Verizon
SHARON RYAN
Bay Area News Group
RONSEGE
Echelon
DARREN SNELLGROVE
Johnson 4 Johnson
JED YORK
San FranciS<O 49ers
Estab lished in 1978 by
David Packard
July 24 th, 201 7
Los Gatos Town Council
110 East Main Street
Los Gatos, CA 95030
RE: Support for Grosvenor 's North 40 Phase I Application
Dear Mayor Sayoc and Councilmembers,
RECEIVED
JUL 2 4 2017
'6 ~ !!Jt Ar.A
TOWi~ OF LOS GATOS
PLANN!'.\C: D~\l!SlON
On behalf of the Silicon Va lley Leadership Group, I am writing to o ffer o ur comments
and express support for Grosvenor USA 's application for a mixed u sed community within
the North 40 Specific Pla n.
The S ilicon Valley Leadership Group, founded in 1978 by David Packard of Hewlett-
Packard, repres ents nearly 375 of Silicon Valley's most respected employers in issues,
programs and campaigns that affect the economic quality oflife in Silicon Valley,
including energy, trans portation , education, housing, health care, tax, and the
environment. Collectively, Leadership Group members provide nearly one out of every
three private sector jobs in Sili con Valley.
With the current shortage of hous ing within our region, the mixed used community as
proposed by Grosvenor USA would provide 320 homes for our region. We are e specially
pleased to see that 50 o f those units will be affordable and dedicated for seniors. The
Leaders hip Group encourages Council to move forward with the applicant as the
development would help alleviate the housi ng crisis by adding much needed housing
s tock to our regi o n.
The Leadership Group believes that the North 40 s ite presents a tremendous opportunity
to build a vibrant community. It is rare as parcels of this size are not readily available in
thi s day and age. The North 40's site offers the ability to plan something ho listica lly that
can address a variety of the Town and region 's need. By incorporating amenities such as
open spaces, gardens, and mi x ed u sed development; all residents alike will benefit from
these additions.
We hope to see the North 40 Phase 1 move forward. Thank you for the consideration of
our comments.
Sincerely,
Carl Guardino
President & CEO
Silicon Valley Leadership Group
Monday July 24th 2017
De sk Ite m fo r the North 40 Hearin g
Mayo r Marice Sayoc & Council ,
RECEIVED
JUL 2 4 2017
9: 111 AM
T O WN OF LOS GATOS
PLAN N!NG D!VlSlON
As are many other members of the community I am unfortunately out of Town due to
previously planned commitments that couldn't be changed. Also unplanned wa s a severe case
of the flu la st week that prevented my writing or even attempting to; my apologi es.
Plea se continue the public hearing to August l 5 t; that would be the request of myself and other
re sidents.
Please continue to work together, regardles s of prior posit ion s or staffs' recommendations-
together as a Town and you as Council ; anything can be accomplished-no matter how wealthy
or entrenched the applicant.
Overwhelming support mandates we continue the path to deny this application and r evise the
Specific Plan to meet the objective requirements of the Town and to make some attempt to
keep our Town from the absolute madness that has become life in Los Gatos; traffic gridlock,
unhealthy living standards, lo ss of our most precious res ources, overcrowded schools ...
I write on behalf of nume rous residents and concerned members of our community to support
your original decision to deny the current application by Grosvenor & Summe r hill and to
support the Council making the findings to deny the application under the Housing
Accountability Act (HAA) as the Judge requested in June of this year.
Excu sing my & most residents' lack of familiarity with the HAA, there are several objective and
quantifiable findings that could be made . If the Council doesn 't feel they are sufficient then we
implore you to make your own findings in order to support your con stituents, attempt to
address the current issues that will only be compounded and the adverse impaCt upon public
health and safety including:
1. Lack of sufficient transportation for the proposed Senior Housing (how will these
extremely low income seniors most likely without transportation get to basic service s.)
a. The location of this senior project must be considered as well (limited access for
emergency services, above a market hall with elevators and no ground floor)
2. Known harmful effects of residential con struction next to freeways (see other
communi cation s & ba sis for denial.)
3. Impact on local schools and the lack of safe bike routes to any of the Los Gatos Schools,
including Le xington which is where new incoming students are be i ng enrolled for this
fall.
a. Investigation into agreement made between the controversial current
Superintendent and Grosvenor & Summerhill should be forthcoming.
4 . Traffic impacts and mitigation do not begin to address the increase and absolute
gridlock in our Town nor were they sufficiently addressed at the time the application
wa s deemed complete . Mitigation measures proposed while large in dolla rs at the time
are completely irrelevant as in the past 3 years our traffic has grown from horrible to
unacceptable; so much so that re si dents (except the few downtown assisted by the
Wood Rd closure) are unable to leave their homes.
a. Senior, students, medical & others are unable to travel to or from Good
Samaritan Hospital or other services due to current traffic (not including beach
or other Highway 17 closures) (please note Good Sam proposed projects adding
hundreds of thousands of sq. ft . of medical space were not included in the EIR .)
b . We as a Town can 't tolerate any increase in traffic; not one car .... as a Council you
must find language and a means to address and mitigate; even if it means
additional conditions for developers.
c. TRAFFIC IS A HEALTH & SAFETY ISSUE; it is dangerous to drive in our town, let
alone walk or ride a bike.
In clo si ng; the Town and Council have findings to deny the application as stated above and in
multiple correspondence from other legal sources, residents and case studies that you choose .
You have the internal resources with two fabulous attorneys on the Council, you have the
language from the staff report that "there is no feasible method to satisfactorily mitigate or
avoid that specifically identified adverse impact other than the disapproval of Applicants'
application" and most importantly you have the support of over 95% of the Town residents to
deny the app lication under objective health and safety criteria.
As you can see by the number of letters you have received by residents that still are requesting
the space remain open or with completely different use that there is a huge disconnect
between the developer driven specific plan and not only what our Town and community want,
but can at th is point in terms of traffic tolerate ..... and life is to be lived; not tolerated.
It can 't be said enough; the adverse impact of the current application is beyond the scope of
anything this Town has ever considered and is so negative that if approved it will change the
face of our Town and this Valley forever.
Plea se continue supporting your constituents, uphold the General & Specific Plan and u se all
your amazing knowledge, experience and deny this application under the HAA as requested by
the court.
Th a nk you so much
Shannon Holmes Susick
16407 Shady View Lane
Lo s Gatos CA 95032
RE C E IV ED
JUL 2 4 20 17
Dear Mayor Sayoc and Council Members, T OWN OF LOS GATOS
PLAMMlMS Dl\flSlON
After some thought, I decided to forward a few notes concerning Council's consideration of the
North 40 Application. These are perso nal thoughts and do not reflect the work of the
Committees or Commissions on which I serve. I prepared these note s without consultation and
in compliance with the Brown Act and Planning Commission Policy on ex parte
communications.
I reviewed the public record concerning grounds for denying the application, and compiled a li st
of several applicable, objective criteria with which, I believe, the Project fails to comply. This is
not a comprehensive list, but captures a few of the issues that are apparent to me.
As a minor aside, I thought about staffs g uidance in the report of July 20, 2017 about the
"objective standard" to be used , and wish to point out that some language, is incons istent with
the definitions, and with common sense. From the report:
"The HAA does not define the term "objective standard ." The following are definitions of
that term found within these two dictionaries : 1. Law Dictionary: A standard that is based on
factual measurements, in the absence of a biased judgement or analysis. 2. Business Dictionary:
Benchmark, criteria, or model based on verifiable measurements or bias free (neutral) analysis
and judgment.
In other words, objective standards are typically quantifiable or numerical standards [italics
mine] and anyone evaluating a project against the standards would arrive at the same
conclusion. Examples within the North 40 Specific Plan include building heights, setbacks, open
space requirements, etc"
Whil e the definitions make sense, the "in other words" does not necessaril y follow. It is clear
that something can be objectively factual without being quantifiable. The common expression of
"objective" is "black and white," which is not numerical , at all.
So please take m y comments as a suggestions, respectful of the the difficult decisions you will
need to make.
Regards,
Matthew Hudes
3.4 .. .the Specific Plan
Area sh o uld be t reated
w ith u nique im age, or
"bra nd," appropriate to
its his tory a n d
relationsh ip t o the Lo s
G atos c o mmunity.
3.3.6 (b) Eliminate b ox-
li ke forms wit h large.
unvaried roofs by using
a variety of building
forms and roof shapes
with clusters of units,
and variations in height,
setback and roof shape
(c) Make the building
visually and
architecturally pleasing
by varying the height,
color. setback.
materials. texture,
landscaping, trim, roof
shapes , and ridge
orientation for all
elevations.
(d) Structures should be
varied in height. size.
proportions. orientation
and roof lines.
spe cifi ed a s
objective standards
in HA A 6558 9.5 {j),
w hic h states th at
"d e si g n re vi ew
standa rds" a re to
b e included as
o bj e ctive st and d rds
a n d c riteri a
Des ign
characteristics are
specified as
obj ective standards
in HAA 65589 .5 (j),
wh ich states that
"design review
standards" are to
be included as
objective stan d ards
and criteria
Application c ontains no t angib le
in d ications o f im a g e or brand in
re latio ns hip to the Los Gato s
com m uni ty. Th is is a g e n e ric
p roposa l tha t c o uld exist
a n ywhe re .
There is exc essive repetition of
building form, within the 5
Condominium C lusters . within the
18 Ro w home structures , and within
the 12 Garden Clust ers, e ss entially
cookie-cutter stamped across the
site. (823 of the architectural
characteristics are the same within
each of the 3 types.)
Plannin g
Commission
Te st imony
Planning
Commission
Test imony
North 40 Specific
Plan
North 40 Specific
Plan
Los Gatos
Boule vard Plan
(f) Em phasize the
individualit y of each
unit with well-defined
limits and individual
entries and details.
(g) El evations shou ld be
mixed wit h in a
development to avoid
repetition of ident ical
facades and roof lin es .
(h) Add variety to
second and t hird floors
with varied eave
heights, wi ndows and
ridge lin e variations.
3.2.1 (a) [Commercial]
Buildings should be
placed c lose to, and
oriented toward, the
street.
Po licy DG6:
Architecture . Produce
high quality, authentic
design, and 360 degree
architecture consis t en t
with the architectural
desi gn guidelines
contained within this
Specific Plan
The orientation of a
building is
objectively
observable.
Des ign
characteristics a re
specified as
objective standards
in HAA 65589 .5 (j),
which states that
"design review
sta ndards" are t o
be included as
objective standards
and c riteria
A number of commercial buildings
are not oriented toward t he st reet,
including the Sp ecialty
Market/Market Hall. which is
oriented towa rd a plaza. the Area
C Restaurant /R etail which is
oriented toward a Parking Lot and
"Garden Retrea t"
Buildings 24 and 25 are Garden
Cluster homes locat ed on Los
Gatos Boulevard wedged
between a gas station and an
office building. Th is is an area that
was never intended as a
residential location, rathe r it is
appropriate for retail or office, and
is completely inconsistent with land
use on Los Gatos Bou levard. The
placement of these homes in this
loca ti o n is inconsistent wit h "high
q uality ... architecture" and
Phase I
Res idential &
Mixed-Use
Neigh borhood
Development
Architecture
and Site
Planning, with
Tentative Map.
Application.
March 18, 2016
Planning
Commission
Testimony
Density I Affordable
Housing (159
resident comment
objections to
Application}
North 40 Specific
Plan
··l'tlW~liJrffllfl North 40 Specific kl -----· -· · -Plan
No rth 40 Specific
Plan
2.7.3 (b) There sh a ll be a Quantity of units
maximum of 270 proposed is
residential units. Thi s is a objectively factual.
maximum, not a goal,
and includes the
affordable housing units
required and the
e xisting units. __ _
2.5.2 (i) Maximum
building height shall be
determined by the
plumb vertical distance
from the natural or
finished grade,
whichever is lower. ..
2.5.5 ... plazas, paseos,
and pathways will be
incorporated to
accommodate
diffe rent types of
activities.
Height is objectively
measurable, as is
natural grade
(although
Application did not
contain accurate
information
regarding natural
grade).
The existence of
plazas, paseos, and
pathways is
o bjectively
verifiable .
guidelines within the Specific Plan
and inconsistent w ith specifics
contained in the Los Gatos
Boulevard Plan.
Application proposes 320 units,
which exceeds the maxi mum of
270. Additionally, existing units
were not counte d, and it is
questionable that exis ting
affordable housing could be
removed and replaced w ith
above market housing.
Application measures height from
finished grade iri all cases, in
contradiction of whichever is
lower. Applicant acknowledges
this and requests a waiver in order
to achieve 20 DU/acre, however
provides no evidence to support
that assertion. Evidence in
Planning Commission testimony
contradicts that assertion .
The Application includes no plazas,
only one miniscule paseo, and
makes limited us e o f "multi-modal
paths." The Application goes to
great detail about "streets" and
"alleys", emphasi zing the urban
nature of the A pplicat ion. but fails
to incorporate the types of Open
Space specified in the Specific
Plan. Paseos are required in the
Specific Pla n , as dist inct from
p athways, to encourage leis urely
walking or stro lli ng, a s compared
w ith multi-mo dal pathways, that
include bicycle use, making t hem
inhospitable to leisurely ped est rian
use.
Planning
Commission
Testimo n y
Planning
Commission
Test imony
Planning
Commission
Test imony
LU l O: Residential.
Pro vide and integrate a
mix of residential
product types designed
to minimize impact on
schools ...
Tra ffic Ele men t TRA 1-4 2
Exis t in g Level of Service
Summary -Table TRA -2
Various intersections on
A rterials : Los Gatos
Boulevard and La rk
Avenue
Standard is
objectively
measurable in
numbers of students
projected to be
enrolled.
Level of Serv ice is
o bjectively
m e asurable
Although marketing material on
Page 3-15 of the A pplicatio n
hy p es a "Grand Paseo ."
(comprising 789 7 sq. ft.--less than
2.23 of Phase 1 Open Space), it is
insignificant and is not designated
on the site plans submitted.
By concentrating all housing in the
Los Gatos Union/LG Saratoga
District, maximum impact will be
placed on that district, while
minimum (or no) impact will be
placed on Cambrian/Campbell
Union Distri c t . A single school
district absorbing all additional
students will more likely require
additional fixed capacity.
including building construction
and educational resou rces as
compared to distributing school
impact across all districts which
would in fact minimize overall
impact, as required by LU 10.
Tra ffic will b e consid e rably wors e
than p rojected in the Initia l Study
North 40 Phase I Development
Project, due to t he structural
im p act of map-guidance directed
traffic through t he relevant area.
By anecdo te of hundreds of Town
residents, the Level of Service on
t hese arterials w ould drop to the
"E" o r "F" level. The Level o f
Service in the EIR has become
highly inaccurate due to stru ctural
flow changes that have not been
mitigated, including some caused
by inaction by the St ate.
(Remember, the Town's temporary
measure of a "traffic study"
cannot be relied on for continued
Planning
Commission
Testimony
Town Council
Testimony
2.1 Council Vision: The
North 40 will embrace
hillside views, trees, and
open space
Open Space Policy 01
View Preservation:
Promote and protect
views of hillsides and
scenic resources .
3.2.1 (d) Natural sunlight
and views should be
considered when siting
buildings and
landscaped open
spaces.
3.2.6 (e){i) Special core
shall be taken to avoid
obstructing views to the
surrounding hills.
Hillside views ore on
obj ective standard
because they can
be directly
observed through
unaided vision. To
put it more plainly:
they are visible to
the naked eye .
Currently, views of
the Los Gatos
hillsides ore directly
observable from the
majority of locations
on the property.
The major hillside
areas and peaks
ore objectively
either visible, or not.
Upon location of
structures proposed
in the application,
the design of the
project will either
allow, or obstruct.
views from
numerous
pedestrian-
accessible locations
on the property.
impact.) This type of unanticipate d
traffic has occurred subs e quent to
the studies and is analogous to a
st ructural cala m ity, such as the
failure of a bridge .
By locating the structure s.
walkways, and streets on a
perpendicular NE-SW grid. the
majority of hillside views w ill be
eliminated from points that
currently afford views. Wh ile it is
understandable that any
construction would afford
obstacles, the issue is with the
specific layout proposed. which
the Applicant was unwilling to
change.
This particular layout eliminates the
vast majority of views (calculated
at 823) due to the fact that the
major hillsides (El Sombroso to the
east and El Sereno to the west) are
situate d at approximately a 45
degree angle from points on the
grid layout of the site; however.
the buildings and streets are
located at 90 degree angles, thus
eliminating virtually all interior views
of the hillsides . If the buildings or
streets were instead located on a
grid that is 45 degrees from what is
proposed, or if the streets were
curved. as they are in several
adjacent neighborhoods. then
significantly (calculated at 473)
more views would be obtained,
without reducing the density of 20
DU/acre .
Planning
Commission
Testimony
2.4.2 The application
submittal must include
an Economic Impact
Study to assess
economic
competitiveness
The inclusion of a
study is required
In fact, there is no layout possible
of similarly -sized buildings that
would obscure more hillside views
than the one that has been
proposed. And there is no
comparable location of this size in
Los Gatos in which the hillside
views are more obscured that
what is proposed. (Note:
illustrations provided in Exhibit A)
While a study was subm itted, it is so
deeply flowed as to make it
comple tely inadequate. The
study, which was meant to ass e ss
the competitive impact of the
North 40 on other areas in Los
Gato s. including, among o thers ,
the Downtown, fa ils to include t w o
of the most re levant factors that
impact the ability of areas t o
compete w ith the North 40. Per
t esti mony from the applic a nt, the
study did not assess parki ng
requirements and constra ints, a nd
did not recognize that a
conditional use permit rs required
in se veral other areas in Town. It is
im possible to assess economic
competitiveness without the
knowle dge of these facto rs.
Planning
Commission
Testimony
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2. Approximate orientation of st reet and building grid of North 40 Application relative to predominant hillsides: El Sereno and El
Sombroso. Note that virtually all views of the p redominant hillsides are obscured from in terior pedestrian positions due to the angle of
layout.
El Sombroso I . ,
3. If the street and building grid were rotated by 45 degrees, or if curved streets were used , th en views of the predominant hill sides would
open up from many more interior locations.
El Sombroso '
Note that in applicant's defense of the proposed orientation in their Letter doted August 5, 2016 , Exhibit E, the applicant states that
"Observations in multiple neighborhoods within the town show that v iews of the hills ore most common ly embraced via linear street oxes and
ore framed by mature street trees and/or buildings." The y go on to soy that "But orienting one 's v iew down a street in directions toward the
crescent of hills, one sees the slopes and ridgeline framed by the streetscope ... "The problem is that in the application , those streets ore
oriented not toward the hillsides, but away from them.