Staff Report
PREPARED BY: ROBERT SCHULTZ
Town Attorney
Reviewed by: Town Manager, Assistant Town Manager, and Finance Director
110 E. Main Street Los Gatos, CA 95030 ● 408-354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 08/15/2017
ITEM NO: 9
DATE: August 10, 2017
TO: MAYOR AND TOWN COUNCIL
FROM: LAUREL PREVETTI, TOWN MANAGER
SUBJECT: CONSIDERATION AND ADOPTION OF AN INTERIM URGENCY ORDINANCE
ESTABLISHING A TEMPORARY MORATORIUM PROHIBITING THE
PROCESSING AND ISSUANCE OF FUTURE LAND USE DEVELOPMENT
ENTITLEMENTS WITHIN THE NORTH 40 SPECIFIC PLAN AREA UNTIL AN
UPDATE TO THE NORTH 40 SPECIFIC PLAN HAS BEEN COMPLETED.
RECOMMENDATION:
Staff recommends that the Town Council open the public hearing, take testimony and
documentary evidence, consider the evidence, and adopt the Interim Urgency Ordinance
(Attachment 1) by at least four-fifths vote to be read by title only and waive further reading.
BACKGROUND:
At its August 1, 2017 regular meeting, the Town Council directed the Town Attorney to draft an
Interim Urgency Ordinance for a moratorium on processing future development applications
within the North 40 Specific Plan area.
Government Code Section 65858 (see Attachment 1) contains procedures the Town must
follow prior to adoption of an interim ordinance establishing a development moratorium. The
Moratorium Power allows a local government to adopt a development "freeze” without
following normal procedures such as preparing an Environmental Impact Report, noticing , and
holding a public hearing, adopting an ordinance over two meetings at least five days apart, and
allowing thirty days before the ordinance goes into effect.
PAGE 2 OF 5
SUBJECT: INTERIM URGENCY ORDINANCE
DATE: AUGUST 10, 2017
DISCUSSION:
California law states that "the legislative body …, to protect the public safety, health, and
welfare, may adopt as an urgency measure an interim ordinance prohibiting any uses that may
be in conflict with a contemplated general plan, specific plan, or zoning proposal that the
legislative body, planning commission or the planning department is considering or studying or
intends to study within a reasonable time." Government Code Section 65858. With legislative
findings that there is a current and immediate threat to the public health, safety, and welfare,
and with a four-fifths vote of the body, the interim ordinance may be in effect for 45 days. The
legislative body may extend an interim ordinance for a 10 month and 15 day period, and again
for another one year period, with a four-fifths vote, to a total period of two years.
Interim Urgency Ordinances are often referred to as “stop-gap” or “incubation period”
ordinances that prohibit a property owner from using his or her property for a specified use for
a limited period of time. CEEED v. California Coastal Zone Conservation Com. (1974) 43
Cal.App.3d 306, 314. They protect and promote the planning process by, among other things,
prohibiting the introduction of potentially non-conforming land uses that could defeat a later
adopted general plan or zoning ordinance. 216 Sutter Bay Associates v. County of Sutter (1997)
58 Cal.App.4th 860, 869; see also Freilich, Interim Development Controls: Essential Tools for
Implementing Flexible Planning and Zoning (1971) 49 Journal Urb. L. 65, 77.
The use of interim urgency ordinances has a long history in California. The first case to address
the validity of an urgency ordinance was Miller v. Board of Public Works (1925) 195 Cal. 477.
There, the city issued a building permit for construction of a “four-family flat dwelling.” But the
city immediately adopted an urgency ordinance making it unlawful to erect multi -family
buildings in the area where the petitioner intended to build and revoked his building permit. In
upholding the permit revocation, the Supreme Court explained that, “It is a matter of common
knowledge that a zoning plan of the extent contemplated in the instant case can not be made in
a day. Therefore, we may take judicial notice of the fact that it will take much time to work out
the details of such a plan and that obviously it would be destructive of the plan if, during the
period of its incubation, parties seeking to evade the operation thereof should be permitted to
enter upon a course of construction which might progress so far as to defeat in whole or in part
the ultimate execution of the plan.” Id. at p. 496.
Some years after Miller was decided, the Legislature enacted Government Code Section 65806.
The precursor to Section 65858, it set forth the conditions and restrictions under which a city or
town could adopt a “temporary interim zoning ordinance.” Anderson v. City Council (1964) 229
Cal.App.2d 79, 92. Other than several minor amendments, such as limiting the length of an
interim ordinance (see Bank of the Orient v. Town of Tiburon (1990) 220 Cal.App.3d 992, 1001 -
1002), the statute has not changed significantly over the years.
PAGE 3 OF 5
SUBJECT: INTERIM URGENCY ORDINANCE
DATE: AUGUST 10, 2017
DISCUSSION (Cont’d):
Cases that have upheld the validity of urgency ordinances adopted pursuant to this statute
have involved situations where local agencies were faced with immediate threats of
development. 216 Sutter Bay Associates v. County of Sutter, supra, 58 Cal.App.4th at p. 871;
Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78, 90 ; Metro Realty v. County of El
Dorado (1963) 222 Cal.App.2d 508
The need to adopt an Interim Urgency Ordinance and re-evaluate and potentially modify the
North 40 Specific Plan is directly related to, and linked to, the litigation entitled Eden Housing,
Inc. et al. v. Town of Los Gatos, Santa Clara County Superior Court, Case No. 16CV300733 . That
litigation was a result of the denial by the Town Council for development within the North 40
Specific Plan area. In that ligation, the Court determined that:
1. The Town’s findings has no findings of compliance or lack of compliance with
objective standards under the Town's Housing Element or the HAA, and recites only
findings of subjective criteria.
2. There is no specific allocation requirement in the Specific Plan.
3. The Town’s finding that the proposed project overly concentrates all of the
residential units on the southern portion of the North 40 Specific Plan area and finds
the allocation excessively disproportionate and inconsistent with the Specific Plan is
a discretionary determination of a subjective policy.
4. The Town’s finding that the proposed project is inconsistent with the North 40
Specific Plan Section requirements for lower intensity re sidential uses in the Lark
District is a discretionary determination of a subjective policy in the Specific Plan.
5. The Town’s finding that buildings 18 through 27 are inconsistent with the Lark
District is a discretionary determination of inconsistency with a subjective policy.
6. The Town’s finding that buildings 24 and 25 are inconsistent with the Specific Plan as
it eliminates a fourth access point off of Los Gatos Boulevard is not a requirement
and there is no objective factor or subjective goal or vision which a fourth access is
material.
7. The Town’s finding that the project is inconsistent with North 40 Specific Plan as it
does not address unmet housing needs for seniors and Gen Y is a discretionary
determination of a subjective policy.
8. The Town’s finding that the project is inconsistent with the Residential Unit Size Mix
and should have smaller units to come closer to the income distribution of
affordable housing identified in the Town's Housing Element is neither a
requirement nor objective standard, but rather, an example how the North 40 site
could assist the Town to meet affordable housing needs of the community.
9. The Town’s finding that the project, specifically buildings 18 through 27, would
result in an anomaly of residential uses within an existing commercial land use
PAGE 4 OF 5
SUBJECT: INTERIM URGENCY ORDINANCE
DATE: AUGUST 10, 2017
DISCUSSION (Cont’d):
context is primarily a subjective policy.
10. The Town’s finding that the only promised Below Market Rate housing is 49 units
above Market Hall and the remainder would have home values estimated at
$900,000 to $1,500,000 requiring a 20 percent down payment and income of
approximately $130,000 to $200,000 per year is not an objectiv e requirement, but a
subjective goal.
Based upon the Court findings and decision in the above referenced litigation, the Town Council
was forced to reconsider the project in the North 40 Specific Plan area that was the subject of
that ligation. Both statutory and case authority now support the Town Council’s right to
consider and enact a moratorium on processing new applications within the North 40 Specific
Plan area while the Town studies the Specific Plan to address the Court ruling and the
repercussions that have occurred due to the approval of the project that was the subject of that
litigation.
As mentioned above, the Interim Urgency Ordinance attached hereto must be adopted by a 4/5
vote of the Council and is effective immediately upon adoption. It would be valid for no more
than 45 days from the date of enactment: thus, if enacted tonight, until September 29, 2017. It
may be extended for an additional period of 10 months and 15 days upon action at a noticed
public hearing. A moratorium ordinance cannot be extended more than twice and cannot
exceed a total of two years. Additionally, ten days prior to the expiration of this Interim
Urgency Ordinance, the Council must issue a report describing the measures taken to alleviate
the conditions that led to the adoption of the Ordinance. If enacted, Staff would return before
the Interim Urgency Ordinance expires (September 19, 2017) with such a report and an
extension for your consideration.
CONCLUSION:
Adoption of the Interim Urgency Ordinance will provide a temporary prohibition on processing
future development applications within the North 40 Specific Plan area. The temporary
prohibition would allow staff and the Town Council time to consider amendments to the North
40 Specific Plan. Town staff estimates that the entire process will be completed within two to
four months.
NEXT STEPS:
If the Interim Urgency Ordinance is enacted the next steps would be:
Council will issue a report describing the measures taken to alleviate the conditions that
led to the adoption of the Interim Urgency Ordinance.
Council will consider an extension of the Interim Urgency Ordinance for up to 10 months
PAGE 5 OF 5
SUBJECT: INTERIM URGENCY ORDINANCE
DATE: AUGUST 10, 2017
NEXT STEPS:
and 15 days.
Study Session on October 3, 2017, regarding potential North 40 Specific Plan
amendments.
Consideration of potential North 40 Specific Plan amendments at a future Council
meeting.
FISCAL IMPACT:
To date, all work on the potential Specific Plan amendments has in volved staff time paid at the
Town’s expense. The adoption of the Interim Urgency Ordinance will require additional staff
time to process the amendments and updates to the North 40 Specific Plan.
COORDINATION:
This report was coordinated with the Town Attorney’s Office, Town Manager’s Office, and
Community Development Department.
CEQA:
Adoption of this Ordinance is exempt from further environmental review under the California
Environmental Quality Act (California Public Resources Code §§ 21000, et seq., “CEQA”) and
CEQA Guidelines (14 California Code of Regulations §§ 15000, et seq.) because it establishes
rules and procedures for minor alterations in land use. This Ordinance, therefore, is
categorically exempt from further CEQA review under CEQA Guidelines §15305. This Ordinance
does not authorize any new construction or development entitlements. Any proposed project
that will utilize the changes set forth in this Ordinance will be subject to CEQA review as part of
the entitlement review of the project. The Ordinance will not adversely impact the
environment and is therefore exempt from the provisions of CEQA.
Attachments:
1. Government Code Section 65858
2. Proposed Interim Urgency Ordinance
3. Public comments received before 11:00 a.m. August 10, 2017