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Attachment 28 - Public CommentFrom: Karyn Meadows Sent: Monday, June 20, 2022 11:23 AM To: GP2040 <GP2040@losgatosca.gov> Subject: Comments on the Draft 2040 General Plan EXTERNAL SENDER Hello, I wanted to add my comments to the email that Matthew Hudes sent out summarizing the 3 key areas and questions that remain. 1.Should virtually every residential area in Town be "upzoned" into more dense neighborhoods? My answer to this is NO unless you are talking about only ADU's. Any other upzoning in current residential areas of single family homes will utterly ruin the character and charm that we came here to live in, buy in and invest in. Our local Santa Clara population is decreasing - WHY do you want to triple the RHNA??? It will be absolutely devastating to this very small town. 2. Will services and infrastructure keep pace with the safety and quality of life that our residents expect? Really cannot see that this happening at all if you try to build so quickly. Especially if you want to grow 70% over RHNA. Again, this will ruin the character of our town. Should growth be spread over a 20-year period such that services and infrastructure can keep pace, or should all growth be permitted on day-one of the 20 year plan? It would only make sense for growth to be spread out over the 20 year period. There is no way for safety, services, and quality of life to be preserved if you try to permit all growth on day 1. On the key questions: Density on top of Density - we do NOT want that additional upzoned density. It would ruin it for us. It would ruin the open-ness, the character, the entire area. It would just ruin it. For upzoning properties in hire fire danger areas, it really makes no sense to upzone them unless it's to add 1 or 2 homes. We've seen what happens in mtn communities that have wildfires. It's not good!! ATTACHMENT 28 Although the GOAL of increased density would be affordable homes, the reality is that MANY, possibly MOST of the lots will be taken by large luxury residences. There are too many developers here and they are not interested in doing affordable homes. Maybe the regulations should change to support LOCAL buyers and NOT INVESTORS. That would certainly help the housing stock here without building up and ruining the character of the town. SB9 SHOULD be counted as part of your housing plan. Period!! It will be for the most part, intended to house, therefore it only makes sense to count it. Best, Karyn Meadows, Resident From: Helen Sun Sent: Monday, June 20, 2022 2:01 PM To: GP2040 <GP2040@losgatosca.gov> Subject: Fwd: Council Will Vote Soon on Housing and General Plan EXTERNAL SENDER Dear town council, Please see my comments shared with council man Hudes below on the expansion plan of 2040. The town has already become more denser/populated over the last few years since we moved here. I am concerned about how the general 2040 plan will change the feel and look of the town and also the burden on the infrastructure of this small town. I would ask the town leaders to sincerely consider preserving the culture of the town and also also not over expanding to the surrounding forest. Can we find out how the nearby towns are handling this issue, ie. Saratoga, Los Altos, Palo Alto, etc, so that we can all expand wisely and responsibly? Thank you! Best, Helen Begin forwarded message: From: Helen Sun Date: June 18, 2022 at 14:43:39 PDT To: Matthew Hudes Subject: Re: Council Will Vote Soon on Housing and General Plan Hi Councilman Hudes, Thanks for sending this to me. Personally, I don’t think it makes sense, nor is it realistic to add another 4000 homes to this tiny town. Our infrastructure and already in crisis resources do not support the expansion at this scale and speed. Will that be another school or two added to the district OR our children and teachers will have to suffer with even larger class size and less resources available to them? I really believe this will hurt our town both near and long run. Thanks! Helen On Jun 18, 2022, at 14:26, Matthew Hudes wrote: HI Helen, On Monday night at 7:00 PM the Los Gatos Town Council will consider the Draft 2040 General Plan which includes as many as 3,904 additional homes in Los Gatos. This is an opportunity, before a vote is taken, for your voice to be heard regarding Housing, Neighborhood Character, and the Future of Our Town. Town Council 7:00 PM June 20, 2022 https://losgatosca-gov.zoom.us/j/88004227157?pwd=ZG1pc3pscTZwZXdCWjc2SkM3b2Nzdz0 Passcode: 320795. In April, the Planning Commission reviewed the Draft 2040 General Plan and made some recommendations to the Council. I have had many conversations with folks around Town, and I am summarizing three key areas and some questions that remain: 1. Should virtually every residential area in Town be "upzoned" into more dense neighborhoods? 2. Will services and infrastructure keep pace with the safety and quality of life that our residents expect? 3. How can we preserve the character of our community while guiding the Town into the future? As always, please feel free to reach out to me at and you can send your comments to the Town at gp2040@losgatosca.gov Thanks for your engagement, Matthew Hudes Councilmember, Town of Los Gatos _________________________________________ Key questions: 1. Density on top of Density Increased density is when additional homes are built in spaces previously zoned for fewer homes. The Draft 2040 General Plan and the Planning Commission Recommendation call for increased density (also called "upzoning") in virtually every residential area in Los Gatos. The State's SB9 mandate also allows for additional density on top of the upzoning. • Do we need that additional upzoned density? And can our town handle the associated impacts of traffic, parking, water-use, and wildfire hazard? • Why should any properties be upzoned in the Very High Fire Hazard Severity Zone, some of which are on narrow roads with flammable vegetation? • And what is the goal of this transformation of Los Gatos neighborhoods—will increased density result in affordable housing or just many large luxury residences on small lots? 2. Overall growth As drafted, the 2040 General Plan, would allow Los Gatos to grow by at least 8,971 people or 28%, which is almost three times greater than the Town’s growth rate in the last 20 years. Infrastructure and services will need to keep pace with growth in order for safety and quality of life to be maintained. Town-wide upzoning could result in even greater stress on our services and infrastructure, At this time, my thoughts are preliminary, and I am open to information provided at upcoming hearings. I will not express a final opinion until the Council votes on these matters. Any expression is by me as an individual, not by the Council. Matthew Hudes for Town Council · CA 95030, United States This email was sent to To stop receiving emails, click here. From: Jbestill Sent: Monday, June 20, 2022 2:35 PM To: GP2040 <GP2040@losgatosca.gov> Subject: Housing and General Plan EXTERNAL SENDER Council Members and Staff: I have reviewed the proposed Housing and General Plan. I am very concerned about the large number of homes recommended here, the lack of specificity about the kind and location of the housing and, most importantly, the lack of fiscal analysis this proposed plan entails. This decision can not and should not be made without a clear understanding of the fiscal impact on the current and future revenue and expenses a proposal such as this will have on the Town. A fiscal analysis should have been part of the initial study for this type of proposal. The Council now has the opportunity to call for what should already be part of the Plan. I strongly urge the Council to reject this plan as currently envisioned and call for a fiscal analysis that includes a thorough outline of the type and location of future housing that meets the needs of our community and public. John (Jack) Estill Lecturer Emeritus, San Jose State University, Department of Economics Los Gatos, CA 95032 From: Tami Shoot Sent: Monday, June 20, 2022 6:07 PM To: GP2040 <GP2040@losgatosca.gov> Cc Subject: Draft 2040 General Plan pertaining to Housing Density EXTERNAL SENDER To Los Gatos Town Council Members, I am adamantly against the Draft 2040 General Plan for Housing Density increasing housing in the downtown and outlying areas of Los Gatos. As I understand it, this proposal increasing housing by almost 9k people and/or 28%! An increase that is 3x greater than what has occurred over the last 20 years! That is a shameful proposition! This will detrimentally affect our traffic, water supply, peace, safety, property values, charm and the very heart and soul of beautiful Los Gatos. I urge you to please fight against this proposal. There is plenty open land in South San Jose where extra housing can be added to Santa Clara County without such an impact as squeezing more people in our already densely populated area that we pay a premium to live in. North 40 was proposed and built to allow more housing in the area. This already is and will be very impactful on traffic and everything else that I’ve aforementioned. I was against this too, but it happened anyway! And now they want to add even more?! Just say NO! Please! Thank you for your time. Tami Shoot Los Gaots, CA 95030 From: Gregg Kerlin Sent: Tuesday, June 21, 2022 12:23 PM To:; GP2040 <GP2040@losgatosca.gov> Subject: 2040 Plan Comments EXTERNAL SENDER I am in full support of expanding housing for teachers, retail clerks, police and local firefighters. Much of the regional planning is targeted to lower income hoursing and I believe that should be the referenced groups should be primary in designing new housing for Los Gatos. The projects made by the 2040 plan for increased housing seem very optimistic since the 2020 census shows that Los Gatos actually lost population!!! Consequently, if the housing is affordable to people offering services support to the town is affordable, then perhaps we can do good at more than one level. However, let’s use realistic projections. I studied the 2040 plan’s Safety section and compared it to the neighborhoods covered and plants by the Community Emergency Response Team (CERT) to understand how we allocate resources across the various risk zones. Some things were clear to me: Almond Grove and Civic Center (Downtown) is the subject of many different hazard events. Moreover, the hillsides (whether within the Town’s concept of zoning or not) are the trigger points of local disasters: wildfire, flooding, and in particular, landslides. We ned to play attention to the importance of pre-emptive planning on behalf of our mountainside neighbors since their bights become ours. This leads me to believe that the Town needs to plan new hoursing sights more toward the northeast regions o Los Gatos, which in general is 1) closer to transportation corridors, and 2) less subject to increase public safety risk and congestion. Beyond that, I don’t have the knowledge to comment. Regards, Gregg Kerlin Los Gatos Extract from my simple study. •LG 2040 Safety Plan provided graphics showing types of hazards the Town would face by using graphics. •The Los Gatos Community Emergency Response Team (CERT) Incident Command Post (ICP) neighborhood map was overlaid onto each of the Town’s 2040 Hazard graphics. •Some interpretation and inferences are offered. LG Town 2040 Safety Plan - Hazard Types The Town of Los Gatos Deﬁned. CERT Neighborhoods. (NICPs) to provide for the safety of its citizens in a disaster. This geographic assignment of Incident Command Posts includes Monte Sereno, similar to the Town’s policing responsibilities. POTENTIAL HAZARDS BY CERT NEIGHBORHOODS Kerlin, 2022OVERALL RISK LEVELICP - Incident Command Post OVERALL RISK LEVEL Incident Area CERT ICP Fire Hazard Landslides # Fault Lines Ground Shaking Liquifaction Historical Widﬁre Flood Zone Dam Inundation Hazardous Material Sites Almond Grove Yes Very High Small Section 3 High Partial High Yes High Civic Center Yes Very high Signiﬁcant 4 High Areas of Town’s Inﬂuence No Very High High 5 Very Low Yes Blossom Hill No Very High High 3 Low Vasona Yes 5 Low - Moderate Very High Yes Very High 2 Vista Del Monte No Signiﬁcant 5 Moderate Kennedy North Yes High Small Section 2 Moderate Kennedy East No Very High 2 Very Low Santa Rosa Hicks No High 5 Low Some Rinconada Yes Small Section 2 Low Partial High Los Gatos Almaden Yes 3 Low North Santa Crus Yes 1 Moderate High Belwood Yes 1 Low Monte Sereno West No High 2 Moderate •Two active ICP zones need exercise drills and evaluation due to their elevated risk proﬁle: Almond Grove and Civic Center. •While CERT has paid attention to Wild Fire and Ground Shaking risks, both the Town and CERT do not have concrete plans for managing the high risk of LandSlides. Some planning and education would be beneﬁcial on how to respond. •The “Town’s Area of Inﬂuence” needs a plan and good deﬁnition. Clearly the hillside of Los Gatos most everywhere are substantial impact zones directly impacting the Town boundaries. It may be both socially responsible and wise to consider active involvement by the Town with the “Inﬂuence Zones” since these will be potentially impacting the Town whether we attend to them or not. Outreach into the hillsides and mountains is to our beneﬁt. The area above St. Joseph’s Hill is also a critical zone. •Some assessment should be made on the number of people impacted and how CERT can prepare. Residents in landslide areas are NOT covered by actual CERT ICP posts: Vista Del Monte, Blossom Hill, Kennedy East, and Santa Rosa Hicks. This should include considerations for Saint Joseph hillside. High Level Observations Kerlin, 2022 Additional Comment for 2040 Plan — New housing should not include the higher risk zones of the Town as opportunity housing areas if other sites are available. In fact, the further one goes to the east and north (Hwy 85, Rinconada, Los Gatos Almaden, the better it is from a safety perspective. From: ALLEN BRANCH Sent: Tuesday, June 21, 2022 3:19 PM To: GP2040 <GP2040@losgatosca.gov> Subject: General Plan EXTERNAL SENDER We are appalled that the Town proposes to approve an increase to the new housing units required by the state. The Town has yet to absorb the impact of the very large new development near Good Samaritan. The Town does not yet have actual information about the impact of this development on traffic, our schools, and the Town's infrastructure. Now the proposal is to increase housing units by 3000 plus and make significant changes to the zoning in order to accomplish such changes. We have resided in Los Gatos for nearly 32 years and there have been a number of changes to the community and traffic during this period. But during that period, the Town had not set a goal for expansion of this significance. These proposed changes will, no doubt, change this community in ways that the town did not predict, nor can it adequately address. Further, those of us who chose to live in Los Gatos because it was not a high density housing area will have lost what we sought when we moved here. Approval of this plan should be delayed. Although the Town has had a number of zoom meetings regarding the General Plan, the coverage of these issues has been spotty. A better job needs to done in bringing these issues to the general public and the approval hearing should not be scheduled when many families are on vacation Susan and Allen Branch The draft General Plan 2040 proposes to increase the density range in Medium Density Residentials to 14 to 22 units per acre. Based on the draft density and size of the parcel per County records (13,076 s.f.) the property may yield between 4-6 units. The Town Council will be holding a special meeting Monday, June 20, 2022 at 7:00 p.m. to review the Planning Commission’s recommendations on the Draft 2040 General Plan. We encourage the public to attend and/or submit written comments for the June 20th Town Council meeting. Here is a link to the website, draft document and links to Monday’s meeting agenda. The material will be available after 5pm on Friday, June 17th. https://losgatos-ca.municodemeetings.com/ Please check with the Town’s Engineering Department to determine if dedication would be required for this property. You may contact Corvell Sparks, Associate Engineer. I have cc’d him on this email. <image001.png> Town and County records note this property is pre-1941 and will require review by the Historic Preservation Committee for removal from the inventory or demolition. I am available Wednesday at 10am and Thursday at 9am to set up a call to discuss your proposed project and the application process. Let me know what works best for you. Sincerely, <image003.jpg> Erin Walters ● Associate Planner Community Development Department ● 110 E. Main Street, Los Gatos CA 95030 Ph: 408.354.6867 ● 408-354-6872 www.losgatosca.gov ● ewalters@losgatosca.gov COMMUNITY DEVELOPMENT HOURS: Counter Hours: 8:00 AM – 1:00 PM, Monday – Friday Phone Hours: 8:00 AM – 5:00 PM, Monday – Friday Erin’s Office Hours – M-F – 9:00 a.m. to 3:00 p.m. Town offices are now open. In accordance with the Santa Clara County Public Health Office Order, we strongly recommend masks indoors regardless of vaccination status. All permit submittals are to be done online via our Citizen’s Portal platform. All other services can be completed at the counter. For more information on permit submittal, resubmittal, and issuance, please visit the Building and Planning webpages. <image004.jpg> General Plan update, learn more at www.losgatos2040.com <image005.png> Housing Element update, learn more at https://engagelosgatoshousing.com This e-mail is intended only for the use of the individual(s) named in this e-mail. If you receive this e-mail and are not a named recipient, any use, dissemination, distribution or copying of the e-mail is strictly prohibited. If you have received this communication in error, please immediately notify us at the above e-mail address.  Think Green, please consider the environment before printing this e-mail. From: Annette Seaborn Sent: Monday, June 13, 2022 10:07 PM To: Joel Paulson <jpaulson@losgatosca.gov> Cc: Erin Walters <EWalters@losgatosca.gov> Subject: Re: 9 Forrest AVe Los Gatos Second request…. Can I please get some clarity? I am not sure how to proceed.. Thank you A N N E T T E S E A B O R N On Jun 7, 2022, at 8:13 PM, Annette Seaborn wrote: Hi Joel, I would like to submit an application to increase my units per acre at 9 Forrest Ave. I understand you are looking for areas to add more untis. This property is in a high density area however is not designated and such. Can you please let me know how to move this request forward? Thank you. A N N E T T E S E A B O R N - Area Specialist 2020, 2018 & 2017 #2 CB individual producer - Realtor Coldwell Banker Realty <cb-awards-premier-i.jpg> INTERNATIONAL PRESIDENT’S PREMIER “Documents prepared by other have not been verified" From: John Shepardson Sent: Wednesday, June 22, 2022 12:25 AM To: Council <Council@losgatosca.gov>; Matthew Hudes <MHudes@losgatosca.gov> Cc: Rob Rennie <RRennie@losgatosca.gov>; Mary Badame <MBadame@losgatosca.gov>; Maria Ristow <MRistow@losgatosca.gov>; Marico Sayoc <MSayoc@losgatosca.gov> Subject: General Plan 2040: RHNA Plus 15 percent & More EXTERNAL SENDER Dear Mr. Hudes: Hard for me to understand RHNA plus 15 position given others’ statements not enough. RHNA is 8 years. GP is 20 years. Can you explain the basis for your position. I don’t have an agenda. I’m trying to be curious and figure out the housing allocation process and numbers. Are the RHNA numbers fair? Why the big jump? What is projected growth? Do we need the buffer? I like the concept of small town feel. It’s a feeling, an emotional sense. Rod Diridon promotes growth in transit areas so we the South Bay is more like Paris than LA. If spread out additional housing outside of transit areas, will it result in lots of cars parked on streets and increased traffic congestion? Community growth areas seem to allow additional homes while reducing traffic impact—shorter distance to drive and assuming people will walk or bike. More commercial development will drive up RHNA numbers. Note Cupertino is putting in concrete barriers to protect bicyclists. Santa Row houses a lot of people. How many bike? Don’t see many. Cambridge, England—people of all ages ride bikes. Copy and paste from https://www.theguardian.com/environment/bike-blog/2011/aug/17/cambridge- model-cycling-city What makes Cambridge a model cycling city? With considerate drivers, dedicated bicycle parking and bike-friendly city planning, it's no wonder cycling is a popular means of transport He says: "It is the ordinary people of Cambridge who cycle; it is your parents having the courage and confidence to cycle that means children have the confidence. If you don't have parents who cycle it is difficult." He added: "Once children get to 11 they cycle to school unaccompanied in Cambridge. In fact they will probably not allow their parents to accompany them after that" I spoke to an 88-year-old man on a bike. Like everyone I spoke to here, he simply sees cycling as the best way to get around. In Cambridge cycling has consistently remained a popular means of transport and so investment into cycling has continued over the years. People teach cycling to their children, who in turn cycle into adulthood. It is just a part of normal life. Where many towns are now choked with cars, Cambridge's faith in the bicycle has made it sadly unique among British towns and cities. Perhaps more positively, however, this has made it a model for what can be achieved when people believe in the bicycle. Should additional housing be in Blossom Hill area given their group’s advocacy for 525K feet for Albright and ended up at like 467K, well over EIR Superior alternative of 350K? Certainly RHNA numbers increased because over 350K? Equity…. How do we promote equity and diversity while keeping the small town feel? That’s the sweet spot to meet both objectives. What about community gardens? Or innovative farming: copy and paste from https://farmflavor.com/florida/walt-disney-world-farm- grows-magical-produce-earth/ Vertical Growing Techniques (Not Just for Beanstalks Anymore!) What if there were a way to increase food production while using less water, less fertilizer, fewer pesticides and even less space? At Disney, this isn’t just fantasy. Traditional growing methods require huge, horizontal plots of land, but at Epcot, produce is climbing upward to achieve this dream. Plants are grown vertically using either stacked gardens or specialized trellises that allow crops to reach gravity- defying heights. Produce grown in this way uses a fraction of the space required by conventional methods, saving water and increasing yields. Thank you for reading this email. Respectfully, John Shepardson, Esq. Sent from my iPhone From: Phil Koen Sent: Thursday, June 23, 2022 9:46 AM To: Jennifer Armer <JArmer@losgatosca.gov>; Joel Paulson <jpaulson@losgatosca.gov> Cc: Town Manager <Manager@losgatosca.gov>; Rob Rennie <RRennie@losgatosca.gov>; Matthew Hudes <MHudes@losgatosca.gov>; Mary Badame <MBadame@losgatosca.gov>; Maria Ristow <MRistow@losgatosca.gov>; Marico Sayoc <MSayoc@losgatosca.gov>;; Rick Van Hoesen ; Lee Fagot ; Tran Nguyen ; Joanne Rodgers ; Gabrielle Whelan <GWhelan@losgatosca.gov>; David Weissman Subject: Staff Memo on Opportunity Housing - City of San Jose EXTERNAL SENDER Hello Ms. Armer, During the Special Meeting of the Town Council this past Monday evening, in response to a series of questions from Council Member Sayoc, you stated there wasn’t any additional information regarding developing Missing Middle Housing available. I have attached a staff report written by the City of San Jose dated December 1, 2021, which provides a very thoughtful analysis of the financial feasibility of the redevelopment of properties into two to four units on a typical 7,500 sq. ft (60 x 125 feet) parcel in various residential neighborhoods throughout the City of San Jose. Additionally, the memo discusses the implications of SB 9 since many of the configurations studied would be allowed by SB 9. I believe this information is critical to any land use decision regarding duplex, triplex and quadplex housing that is currently being deliberated by the Town Council. Perhaps you could review the material and provide the Town Council with Staff’s view of the most appropriate location for duplex, triplex and quadplex housing types which maximizes the financial feasibility of development. Unfortunately, I do not believe the GPAC, PC or Town Council ever received an analysis of the financial feasibility of redeveloping a typical 8,000 sq. ft single family residential parcel into two-to-four-units in Los Gatos. This goes to the heart of the question as to whether or not the Town ever studied the financial feasibility of the redevelopment of an existing neighborhood as shown in Figure 3-5 (attached) of the draft 2040 General Plan. Without knowing whether the redevelopment of the parcels as shown in Figure 3-5 are financially feasible, how can one reasonably conclude that “implementing the missing middle” is the “how to meet the housing needs of Los Gatos” as stated section 3.2 of the draft 2040 General Plan? Based on the City of San Jose study, the conclusion was that in the Tier 1 market (which is the highest market value area of San Jose which is below the market value of Los Gatos) the redevelopment of a stacked fourplex rental or condo (like housing type D in figure 3-5) was not feasible in existing residential neighborhoods. If a fourplex is not feasible neither would a stacked duplex such as types C and E. Since San Jose did not study the cottage court type, it is unknown as to its feasibility. I did confirm with the Chair of the GPAC that a financial feasibility analysis similar to the City of San Jose’s was never presented to the GPAC. Lastly, the City of San Jose study shows that in the Tier 1 market (which is a good proxy for Los Gatos), the housing types studied are only affordable to households above 120% AMI. The newly published State Income Limits established the Santa Clara County Area Mean Income (AMI) to be $168,500 (see attachment). 120% of $168,500 would be an income level of $202,200. Stated another way all of the redeveloped housing types shown in Figure 3-5 (e.g., Missing Middles )would not be affordable to very low- and low-income families. If the Town has chronically under performed in our ability to develop housing for the very-low and low income groups, and we are struggling to determine an answer to how to properly plan for the amount of very-low and low income housing allocated by the 6th cycle RHNA, why is the Town promoting a land use policy such as LU 1.2 which seemingly benefits only those earning over $202,200 and fails to address the housing needs of income groups earning between $84,250 and $168,500? The policy seems to conflate affordability with “less expensive”. They are very different measures. To be clear, we believe the land uses goal needs to be centered on the concept of supporting housing types that are “affordable” and not simply “less expensive” since “less expensive” is a subjective term. Thank you for your assistance. Phil Koen Los Gatos Community Alliance PLANNING COMMISSION AGENDA: 12-1-21 ITEM: 8.a. TO: PLANNING COMMISSION FROM: Christopher Burton SUBJECT: Opportunity Housing and SB 9 Implementation DATE: December 1, 2021 COUNCIL DISTRICT: Citywide Type of Permit Not a permit Project Planner Jerad Ferguson CEQA Clearance Not a Project, File No. PP17-007, Preliminary direction to staff and eventual action requires approval from a decision-making body. CEQA Planner David Keyon RECOMMENDATION Staff recommends that the Planning Commission recommend that the City Council take the following action: 1. Decline to move forward with the City’s Opportunity Housing effort at the present time in order to focus on implementation of Senate Bill 9 (SB 9), which requires the City to allow most of the Opportunity Housing types contemplated as part of the Four-Year Review of the General Plan process. 2. Direct staff to develop citywide design standards for implementation of SB 9. 3. Direct staff to explore allowance for “SB 9-type” housing projects within R-2 Zoning Districts and on historic properties that do not qualify under SB 9. PROJECT BACKGROUND General Plan Four-Year Review The Envision San José 2040 General Plan (General Plan) is a comprehensive, innovative, and forward- thinking policy document that lays the framework for becoming a fiscally-sound and environmentally sustainable city of great places. Over 5,000 individuals participated in the General Plan update process from 2008 through 2011, and the General Plan was approved unanimously by the City Council on November 1, 2011. The General Plan sets forth Goals and Policies requiring the City to conduct a review of the Plan every four years. The purpose of the General Plan Four-Year Review (Four-Year Review) is to evaluate significant changes in the planning context and achievement of key General Plan goals. The General Plan requires the City to reconvene a Task Force during each Four-Year Review to provide community and stakeholder engagement in reviewing and evaluating success in the implementation of the General Plan and to recommend any mid- course actions needed to achieve its goals. consideration natural, human-made, and neighborhood boundaries, and on properties adjacent to existing multifamily housing types or properties designated for multifamily housing. Should the City Council direct staff to further explore Opportunity Housing, the following actions will need to be initiated: 1. Conduct a citywide community engagement effort: a. Work with community organizations and leaders to encourage participation and diverse representation reflective of San José in the outreach process. 2. Explore creating an affordable housing incentive to encourage inclusion of units at affordable or moderately-priced levels in Opportunity Housing. 3. Find an approach that would allow Opportunity Housing while also minimizing displacement risk: a. Conduct a Displacement Risk Analysis where Opportunity Housing would be implemented. b. Determine if existing City protections for renters (i.e., just causes for evictions under the Tenant Protection Ordinance, Ellis Act Ordinance relocation requirements) would be sufficient or are additional protections needed to minimize and discourage displacement. Consider additional protections for renters such as not allowing Opportunity Housing on properties that have withdrawn from the market through the Ellis Act Ordinance, are qualifying properties under the Apartment Rent Ordinance, and have been occupied by renters in recent years. c. Consider additional restrictions for use of Opportunity Housing units as short term rentals, beyond the City's existing ordinance. 4. Explore strategies to preserve historic areas and properties while also allowing Opportunity Housing: a. Consider allowing the adaptive reuse of structures that are on or are eligible for inclusion on the City of San José’s Historic Resources Inventory. b. Consider an age-based rule for older homes applying for Opportunity Housing if updates to the Historic Resources Inventory are not completed by the time of implementation. 5. Update City policies and ordinances to allow Opportunity Housing: a. Update the Citywide Design Standards and Guidelines to include Opportunity Housing design standards that ensure that Opportunity Housing projects are designed to be compatible with existing neighborhoods. b. Revise the General Plan and Zoning Code to allow and facilitate Opportunity Housing while maintaining the intent for Opportunity Housing to blend in with the existing neighborhood. Task Force Recommendation Many on the Task Force commented that they were concerned that limiting Opportunity Housing to areas proximate to transit would disproportionately impact less affluent neighborhoods and not provide new options for housing within higher resource neighborhoods. Following deliberation, the Task Force recommended approval of the staff recommendation (28 approved, 6 opposed) with the following modification: Explore allowing up to four units on parcels with a Residential Neighborhood land use designation citywide. The Task Force agreed with the further action items in the staff recommendation. The Task Force made the following additional recommendation to staff (27 approved, 6 opposed, 1 abstention): Recommend to staff that during the period of study for Opportunity Housing that staff prioritizes Urban Village implementation. Senate Bill 9 Additional Potential Configurations (six-eight units): These configurations are all three-stories but have parking ratios less than one per unit. • Three-Story Sixplex: Adds a third story to the stacked fourplex, with two more units on the third story. • Two-Story Eightplex: Same gross building square footage as the stacked fourplex, but with four units on each floor. These were tested only as rental and were the smallest unit size tested. • Three-Story Eightplex: Same building square footage as three-story sixplex, but with three units that are smaller on first two floors. Tested as rental and condo. Stacked Fourplex Two-Story Sixplex/Eightplex Side-By-Side Duplex in Rear Yard Attached Townhomes Small Lot Single Family Three-Story Stacked Sixplex/Eightplex Several Configurations are Financially Feasible The 12 models were tested using a pro-forma model that calculated the project value (rental revenue or unit sales), subtracted development costs (all construction costs plus a profit), and calculated the residual value. will be initiated in the next year (Southwest Expressway/Race Street and Eastside Alum Rock). Additionally, staff will be working with the Valley Transportation Authority per Council direction to update the Five Wounds Plans (covering Five Wounds, Little Portugal, 24th and William, and Roosevelt Park urban village plans) to allow mixed-use development to align with the opening of the 28th Street/Alum Rock BART station. Staff is also anticipating initiating work on the Capitol Caltrain Station Area plan in Spring 2022, which is an item resulting from the Monterey Corridor Working Group and supported by Task Force recommendations from the General Plan 4-Year Review. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) Not a Project, File No. PP17-007, Preliminary direction to staff and eventual action requires approval from a decision-making body. PUBLIC OUTREACH Opportunity Housing was discussed at the following General Plan Four-Year Review Task Force meetings: December 18, 2019; February 27, 2020; July 30, 2020; and August 20, 2020. Approximately 444 members of the public attended the meetings on Opportunity Housing and provided comments and questions for staff and the Task Force. In addition, staff conducted outreach with the following neighborhood groups across the City on the topic of Opportunity Housing: • 2/8/21 - Almaden Valley Community Association • 2/29/21 – District 8 Community Round Table • 3/8/21 – District 2 Leadership Group • 3/29/21 – Shasta Hanchett Neighborhood Association Board • 4/8/21 – District 9 Leadership Group • 4/12/21 – SJ United District 2, 9, 10 • 4/15/21 – SJ United District 5, 7, 8 • 4/19/21 – Young Democrats of Silicon Valley • 4/22/21 – SJ United Districts 1, 3, 4, 6 • 4/23/21 –SV@Home Housing Action Coalition • 5/17/21 – District 1 Leadership Group In the recommendations to the Task Force on Opportunity Housing, staff had contemplated a robust community engagement plan in the development of Opportunity Housing development standards if the City Council were to direct staff to moved forward with Opportunity Housing. Staff will conduct additional community engagement as part of the effort to implement SB 9. Project Manager: Jerad Ferguson Approved by: /s/ Michael Brilliot, Deputy Director for Christopher Burton, Planning Director ATTACHMENTS Exhibit A: Feasibility Analysis Report from Strategic Economics Exhibit B: Information Memorandum on SB 9 and SB 10 Opportunity Housing and SB 9 Implementation Links to Attachments A-B Click on the title to view document Exhibit A: Feasibility Analysis Report from Strategic Economics Exhibit B: Operations Plan Exhibit B: Information Memorandum on SB 9 and SB 10 Correspondence received after November 24, 2021 From: Francois, Matthew Sent: Friday, June 24, 2022 10:24 AM To: Attorney <Attorney@losgatosca.gov> Subject: Los Gatos: 2040 General Plan EXTERNAL SENDER Dear Ms. Whelan: As you know, our firm represents Los Gatos Community Alliance (LGCA). For several months now, we have submitted letters to the Town Staff, Planning Commission, and Town Council outlining the myriad legal inadequacies with the EIR prepared for the Town’s General Plan Update. Chief among those deficiencies is that the EIR did not study the impacts associated with the General Plan Update’s significant upzoning in almost every land use category. We also pointed out there was no need for such upzoning to meet the Town’s RHNA number and also that such upzoning would generally prohibit the Town from denying or reducing the density of a project that complied with the proposed new higher density limits under the Housing Accountability Act. In our June 17, 2022 letter to the Town Council, we listed a series of reasonable changes to the General Plan Update that the Town Council could make to address LGCA’s concerns and to ensure that the impacts of the plan it adopts have been studied in the accompanying EIR. We understand that the Council continued its discussion of the General Plan Update to next week. We’re still hopeful that the Town Council will seriously and thoughtfully consider, and ultimately embrace, LGCA’s requested changes. But, since that has not been the reception from the Town to LGCA’s comments thus far, LGCA authorized us to prepare a draft Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief. A copy of the draft Petition and Complaint is attached hereto. It is also important to note that after the draft General Plan Update was released in June 2021, there was public concern over the massive density changes proposed. LGCA commissioned EMC to conduct a public poll regarding the General Plan Update. The results were clear and convincing. The overwhelming majority of Town residents do not support the proposed General Plan Update. Specifically, 60 percent of Los Gatos voters indicate that they would vote to reject this plan if it were to be put on a future ballot. See summary of polling results attached. We hope that this information is helpful to you as you advise the Town Council on their options for decision-making on the General Plan Update. LGCA continues to encourage the Town Council to take land use planning actions that are supported by the law and reflect the desires and wishes of Town residents. Thank you for your consideration of LGCA’s views on this matter. Please do not hesitate to contact me with any questions regarding this correspondence. Sincerely yours, Matt Francois Matthew D. Francois | San Francisco, CA 94105 _____________________________________________________ Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -1- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF RUTAN & TUCKER, LLP Matthew D. Francois (State Bar No. 181871) mfrancois@rutan.com Peter J. Howell (State Bar No. 227636) phowell@rutan.com Jayson A. Parsons (State Bar No. 330458) jparsons@rutan.com 455 Market Street, Suite 1870 San Francisco, CA 94105 Telephone: 650-263-7900 Facsimile: 650-263-7901 Attorneys for Plaintiffs and Petitioners LOS GATOS COMMUNITY ALLIANCE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA LOS GATOS COMMUNITY ALLIANCE, Plaintiffs and Petitioners, vs. TOWN OF LOS GATOS, TOWN COUNCIL OF THE TOWN OF LOS GATOS, and DOES 1 through 20, inclusive. Case No. ___________________ VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF [California Environmental Quality Act (“CEQA”), Pub. Res. Code §§ 21168, 21168.5); Code of Civ. Proc., §§ 1085, 1094.5; 1060; 526 et seq.] Petitioner and Plaintiff LOS GATOS COMMUNITY ALLIANCE (“LGCA” or “Petitioner”) respectfully petitions this Court for issuance of a writ of mandate pursuant to Code of Civil Procedure (“CCP”) section 1094.5 and Public Resources Code (“PRC”) section 21168, or in the alternative pursuant to CCP § 1085 and PRC § 21168.5, and complains for the issuance of temporary, preliminary, and permanent injunctive relief and for a declaration of its rights pursuant to CCP §§ 526 and 1060, directed at Respondents and Defendants TOWN OF LOS GATOS (“Town”) and TOWN COUNCIL OF THE TOWN OF LOS GATOS (“Town Council,” and collectively with Town and Does 1-20, “Respondents”), as follows: /// /// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -2- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF I. INTRODUCTION 1. This action challenges the June ___, 2022 decision of the Town and Town Council to approve its 2040 General Plan Update (the “Project”) and the accompanying Environmental Impact Report (“EIR”)1 for failure to comply with the California Environmental Quality Act (“CEQA”), Public Resources Code § 21000 et seq. and 14 California Code of Regulations § 15000 et seq. (“CEQA Guidelines”). 2. The Project greatly increases densities and intensities in almost every land use designation. Yet, the EIR does not study the reasonably foreseeable consequences of these major changes. This fundamentally and irreconcilably violates CEQA. (See, e.g., Public Resources Code § 21065; CEQA Guidelines §§ 15146(b), 15378; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal. 3d 376; Las Virgenes Homeowners Federation, Inc. v. County of Los Angeles (1986) 177 Cal.App.3d 300, 307; and Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1228-1229.) 3. Instead of the tens of thousands of additional housing units and tens of millions square feet of new commercial development allowed by the Project, the EIR studied only a small fraction of this development, e.g., approximately 3,700 housing units and approximately 670,000 square feet of commercial development. The EIR’s failure to analyze the impacts of the “whole of the project” undermines the EIR’s analysis of every single environmental resource from Aesthetics to Wildlife. 4. The EIR acknowledges that it improperly relied on inconsistent and conflicting baselines. The FEIR states that the EIR used future conditions as the baseline. Yet, the DEIR states that it relied on existing conditions, at least as to vehicle miles traveled (“VMT”) and certain other resource categories. EIRs have been overturned for relying on conflicting baseline information. (See, e.g., Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99.) Courts have also stated that an EIR may not rely on a future conditions baseline without any substantial evidence to support use of something other than the existing conditions 1 The EIR consists of the Draft EIR (“DEIR”) dated July 2021, Recirculated Draft EIR (“RDEIR”) dated November 2021, and Final EIR (“FEIR”) dated March 2022. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -3- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF baseline. (Neighbors for Smart Rail v. Exposition Metro Line Construction Auth. (2013) 57 Cal.4th 439.) There is no substantial evidence in the record to support use of a future conditions baseline here. Further, the EIR acknowledges that its analysis relies on a “plan-to-plan” comparison of environmental impacts. Courts have ruled that such paper analysis violates CEQA. (See, e.g., Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350.) 5. The EIR fails to adequately analyze and address significant transportation impacts. The RDEIR identifies a new significant unavoidable impact to transit vehicle operations due to increased delays at intersections. Yet, the RDEIR does not impose feasible mitigation measures to avoid or substantially lessen this significant impact. The RDEIR also fails to consider any alternatives to this newly identified significant impact. In all these aspects, the EIR fails to comply with CEQA. (Public Resources Code §§ 21002, 21002.1(a), CEQA Guidelines §§ 15126.4, 15126.6; Laurel Heights Improvement Assn., supra, 47 Cal.3d at 400-403.) 6. The EIR also fails to adequately analyze and/or mitigate significant environmental impacts in several resource categories. The EIR fails to properly consider or properly analyze significant cumulative impacts. It fails to analyze a reasonable range of alternatives to the Project. The EIR further improperly defers mitigation without specifying objective performance standards, as required by CEQA. 7. Contrary to CEQA, the FEIR fails to provide a good faith effort at full disclosure in response to the comments on the DEIR. Because the CEQA findings (“Findings”) are based on the same flawed EIR analysis detailed in comment letters submitted by Petitioner and others, the Findings are not supported by substantial evidence, as required. Had the analysis been done correctly, the EIR would have disclosed new or substantially more severe environmental impacts. Because the EIR did not address these impacts, they are likewise not included in the Findings. 8. Because of these fundamental and irreconcilable transgressions of CEQA, Petitioner seeks a writ of mandate and/or declaratory relief requiring the Town to set aside its approvals certifying the EIR and approving the Project. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -4- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF II. THE PARTIES 9. Petitioner LGCA is an unincorporated, non-profit, public interest community association committed to well-reasoned land use planning actions and promoting and enforcing the provisions of CEQA. Members of LGCA reside in and own property in Los Gatos and will be directly impacted by the Project’s impacts. 10. Petitioner has significant interests in ensuring that Respondents adequately analyze and mitigate the environmental impacts of the Project as well as properly develop a General Plan that meets the Town’s regional housing needs allocation (“RHNA”), including its affordable housing obligations, while preserving the small town nature and character of the Town. LGCA has a beneficial interest in the outcome of this case for itself and on behalf of its members. 11. Petitioner and/or its members testified and/or submitted comment letters and other objections expressing concerns about Respondents’ plans for, and inadequate consideration of, the significant environmental impacts of the Project at all appropriate times up to and including the Town Council hearing to certify the EIR and approve the Project on June ___, 2022. Petitioner objected to the certification of the EIR and approval of the Project both orally and/or in writing prior to the close of the public hearing before the filing of the notice of determination. 12. Petitioner brings this action in the public interest, for enforcement of the important public rights and environmental interests intended to be protected by CEQA and to assure compliance with CEQA and other applicable provisions of law implicated by the Respondents’ unlawful actions. 13. Respondent/Defendant Town is, and at all times mentioned herein was, a municipal corporation organized and existing under the laws of the State of California. The Town has a mandatory duty to comply with the California Constitution, State law requirements, including CEQA, the CEQA Guidelines, and California zoning laws, as well as its own Town Code, when considering discretionary activities and land use regulatory actions such as the Project. 14. Respondent/Defendant Town Council is the elected decision-making body of the Town that certified the challenged EIR and approved the contested Project. 15. Petitioner is ignorant of the true names and capacities of those sued herein as DOES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -5- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 through 20, inclusive, and therefore sues those respondents/defendants by such fictitious names. Petitioner will amend this Petition to allege the true names and capacities of these fictitiously named respondents/defendants when they have been ascertained. Petitioner designates all other unknown persons or entities claiming any interests in the subject of this litigation as DOE respondents/defendants. III. JURISDICTION AND VENUE 16. This Court has jurisdiction over this proceeding pursuant to CCP §§ 1085, 1094.5, and 1060, and CEQA, including but not limited to Public Resources Code §§ 21168 and 21168.5. 17. Venue in this Court is proper pursuant to CCP § 394, in that Respondents are located within the County of Santa Clara. 18. All facts and issues raised in this Petition were presented to Respondents prior to Respondents’ decision to certify the EIR and approve the Project on June ___, 2022. Petitioner has exhausted all available administrative remedies, and submitted timely objections orally and/or in writing, prior to Respondents’ approval of the Project. IV. FACTUAL BACKGROUND A. Description of Project 19. On February 6, 2018, the Town of Los Gatos began the process of updating its 2020 General Plan with what would be known as the 2040 General Plan (the “General Plan Update” or “GPU”). The putative goals of the GPU include refining the General Plan, addressing emerging trends and recent State laws, and considering new issues. B. Environmental Review 20. On or about July 30, 2021, the Town circulated a Notice of Completion and Availability for the DEIR. The DEIR was circulated for 45 days, concluding on September 13, 2021. Written comments were received during this time, and a Planning Commission public hearing was held on September 8, 2021, to receive oral comments. 21. The DEIR stated that the Project would result in significant environmental impacts as to Air Quality, Cultural Resources, Geology and Soils, Greenhouse Gas Emissions, Noise, and Transportation. As to Greenhouse Gas Emissions and Transportation, the DEIR found that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -6- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF mitigation measures could not mitigate impacts to less than a significant level, and thus concluded that the Project would result in significant and unavoidable impacts to these resource categories. 22. During this initial comment period, Petitioner submitted written comments in correspondence dated September 13, 2021. Petitioner’s comment letter raised numerous substantive and procedural concerns with respect to the EIR’s analysis, including the issues raised in the present Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief (the “Petition”). 23. During the review of commentary and the preparation of the FEIR, the Town became aware that the original Notice of Completion and Availability was procedurally flawed, and also that Appendix C erroneously included a draft Transportation Analysis, rather than a final version. Accordingly, the Town reissued the Notice of Completion and Availability of the DEIR and formally recirculated Chapter 4.15, Transportation, and Appendix C, Transportation Analysis for the DEIR, as well as the Executive Summary. The public review period on the RDEIR ran from November 19, 2021 through January 7, 2022. A public hearing to receive comments on the RDEIR was held on December 8, 2021. 24. During this time, additional written comments on the RDEIR were received. Petitioner submitted written comments in correspondence dated January 5, 2022. Petitioner’s comment letter raised additional substantive and procedural concerns with respect to the EIR’s environmental analysis, including the issues raised in the present Petition. 25. On or about March 24, 2022, the Town published the FEIR for the Project. In written correspondence dated April 12, 2022 and June 17, 2022, Petitioner summarized the deficiencies and flaws remaining in the EIR. In it correspondence dated March 22, 2022 and June 17, 2022, LGCA outlined certain specific changes the Town could make to rectify certain major fundamental flaws with the EIR. Neither the Planning Commission nor the Town Council adopted these reasonable and straight-forward changes. C. Public Hearings and Project Approval 26. On April 13, April 25, April 27, and May 2, 2022, the Town’s Planning Commission held public hearings to consider and make recommendations to the Town Council as to the GPU and EIR. At its final hearing, the Planning Commission recommended that the Town Council certify 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -7- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF the EIR and approve the Project. 27. On June ___, 2022, the Town Council voted to certify the EIR and approve the Project. 28. Because the Town Council’s actions certifying the EIR and approving the Project violates CEQA in several fundamental and irreconcilable ways, Petitioner commenced this action. FIRST CAUSE OF ACTION (Petition for Writ of Mandate for Violations of CEQA) 29. Petitioner hereby incorporates the allegations of the foregoing paragraphs as though set forth in full herein by this reference. 30. Pursuant to CEQA, before a public agency approves any discretionary project, the agency must first identify, assess, and publicly disclose the project’s significant environmental effects. An agency may not approve a project that has the potential to have significant environmental impacts if there are feasible alternatives or mitigation measures that would avoid or substantially lessen the adverse environmental impacts. 31. In doing the things herein alleged, the Respondents failed to comply with their mandatory duties under CEQA in several substantial and prejudicial respects, including without limitation, the following: 32. The EIR fails to analyze the impacts of the “whole of the project” as required by CEQA. The EIR analyzes only a small fraction of the tens of thousands of additional housing units and tens of millions square feet of new commercial development allowed by the changes to the land use densities under the General Plan Update. This error alone infects the EIR’s analysis of every single environmental resource. By greatly upzoning most residential and commercial land use designations and then failing to consider the environmental impacts associated with the upzoning, the EIR fails to analyze the full degree of impacts resulting from the Project. 33. Town Staff has contended that it is “standard” practice to assume only a fraction of the growth enabled by changes to a general plan, but this is directly contrary to CEQA which mandates that the FEIR analyze the “whole of an action” that may result in either a direct or reasonably foreseeable indirect physical change in the environment. (See, e.g., Public Resources 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -8- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Code § 21065; CEQA Guidelines §§ 15146(b), 15378; Laurel Heights Improvement Assn., supra [EIR found inadequate for studying only a portion of a proposed laboratory/office development project]; Las Virgenes Homeowners Federation, Inc., supra, 177 Cal.App.3d at 307 [in upholding the cumulative impact analysis of a project EIR that relied upon plan EIRs, the court reasoned that the plan EIRs “necessarily addressed the cumulative impacts of buildout to the maximum possible densities allowed by those plans” with mitigation measures proposed and any overriding benefits of development noted]; accord, Banning Ranch Conservancy, supra, 211 Cal.App.4th at 1228-1229.) 34. Furthermore, Town Staff has indicated that the Town would monitor growth, and if it reached the maximum amount studied, the Town would only then conduct additional environmental review. However, this also violates CEQA, as courts have routinely rejected similar claims to study environmental impacts after a project has been approved, because if post-approval environmental review were condoned, EIRs would be reduced to nothing more than post hoc rationalizations to support actions already taken. (Laurel Heights Improvement Assn., supra, 47 Cal.3d at 394 [“If postapproval environmental review were allowed, EIR’s would likely become nothing more than post hoc rationalizations to support action already taken.”]; accord, Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 138; see also City of Santa Ana v. City of Garden Grove (1979) 100 Cal.App.3d 521, 533 [EIR should be prepared as early in the planning process as possible to enable environmental considerations to influence project, program, or design especially since general plan EIRs are used as foundation documents for specific project EIRs].) 35. The Project Description is inaccurate, unstable, and inconsistent. It is well-settled that an accurate and complete project description is necessary for an intelligent and informed evaluation of the potentially significant environmental impacts of an agency’s action. (Cf. Silveira v. Las Gallinas Valley Sanitary Dist. (1997) 54 Cal.App.4th 980, 990; County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 192; and City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 407-408.) Here, the EIR’s project description is flawed in numerous ways: a. The preferred Land Use Alternative approved by the Town Council is not the project studied in the EIR. At its April 7, 2020 meeting, the Town Council embraced Land Use Alternative C, calling for an additional 2,303 housing units. Yet the EIR assumes 3,738 new housing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -9- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF units, which is more than a 60 percent increase from the land use scenario approved by the Town Council. In reality, the General Plan Update allows for growth that far exceeds the Council’s preferred Land Use Alternative as well as what was studied in the EIR. b. The EIR states that one of the “central objectives” of the 2040 General Plan is to achieve the Regional Housing Needs Allocation (“RHNA”) of 2,000 dwelling units for 2023- 2031 developed by the Association of Bay Area Governments (“ABAG”). (DEIR, pp. 2-7, 6-1.) But the EIR then proceeds to analyze 3,738 dwelling units—nearly double the assumed 2023 RHNA figure. The EIR further states that the 2040 General Plan “incorporates the adopted 2015 Housing Element” and that the 2023 Housing Element “is not included in this General Plan Update and would be updated consistent with state law.” (DEIR, pp. 1-4, 2-14, 2-16, 4.13-4.) But if the Project’s objective truly is to embrace the 2023 RHNA allocation, then proceedings on the 2040 General Plan should halt until the 2023 RHNA allocation is finalized. c. Furthermore, the geographical scope of the Project is unclear. The EIR refers to the eight Community Place Districts which are intended to be “[f]ocus areas for growth.” (DEIR, pp. ES-2, 2-1.) But the General Plan Update significantly increases densities throughout the Town, not just in Community Place Districts. The EIR does not acknowledge or attempt to reconcile this serious disconnect between the amount and location of growth allowed by the General Plan Update and the amount and location of growth studied in the EIR. d. An EIR is invalid if its project description does not describe the necessary infrastructure improvements (e.g., water, sewer, storm drain, roadways, sidewalks, etc.) associated with the project. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 729-734 [EIR for housing project invalid for failing to consider and analyze impact of necessary sewer expansion].) The EIR’s Project Description does not contain any discussion of necessary infrastructure improvements associated with the Project. The EIR likewise defers analysis of infrastructure improvements to a future time. This is plainly inadequate under CEQA. e. Finally, Tables 2-2 and 4.11-2 of the FEIR shows a total of 3,738 units with no units labeled “Hillside Residential.” However, on September 20, 2021, Town Staff reported to the Town Council and Planning Commission a table showing 166 units in the Hillside Residential 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -10- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF category, for a total of 3,904 units. The EIR does not analyze the impacts of 3,904 units, but only the small (and even more grossly deflated) amount of 3,738 units. f. In short, the Project Description has continued to change and evolve throughout the process, thus robbing the EIR’s analysis of its validity. 36. The EIR fails to adequately analyze and address significant impacts to Aesthetics by, among other things: a. Failing to provide visual simulations or related data regarding future buildout conditions. b. Omitting discussion of key policies pertaining to scenic resources, scenic easements, undergrounding requirements, or view corridor protection. c. Neglecting to study scenic resources within or adjacent to state scenic highways. d. Improperly deferring mitigation for significant visual impacts by the EIR’s admission that the development of formal design guidelines would occur at a later time. 37. The EIR also fails to adequately analyze and address significant impacts to Air Quality by, among other things: a. Evaluating consistency between the Project and the Bay Area Air Quality Management District’s 2017 Clean Air Plan (“CAP”) using only six of the 85 control strategies contained in the CAP. b. Ignoring that Project growth is inconsistent with the growth projections assumed in the CAP which are based on substantially lower ABAG population forecasts. c. Using an indefensible methodology to assess impacts related to vehicle miles traveled (“VMT”) whereby the EIR only reaches a less than significant conclusion by comparing VMT to population increase on a percentage basis. d. Limiting the qualitative analysis of construction impacts only to dust control measures and wholly ignoring other construction-related emissions. The EIR’s conclusion that the Project would result in less than significant construction impacts is not supported by substantial evidence. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -11- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF e. Failing to consider the health-related effects of all air quality emissions, including criteria air pollutants associated with Project construction activities and operations. (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502 [EIR overturned for failure to explain how air pollutants generated by a project would impact public health]; accord, Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184.) Because the Town failed to conduct such an analysis, the EIR fails as an informational document. 38. The EIR fails to adequately analyze and address significant impacts to Biological Resources, including by: a. Failing to address potential impacts on special-status animal and plant species, including but not limited to, the California Tiger Salamander. b. Concluding that impacts would be less than significant despite acknowledging that infill development, or development attendant to the overall increase in density for all areas within the Town, could result in significant impacts but failing to impose any mitigation measures to address those impacts. 39. The EIR fails to adequately analyze and address significant impacts to Cultural and Tribal Cultural Resources by, among other things: a. Failing to acknowledge that the significant increase in densities throughout the Town will lead to additional development in historic districts and thus impact important historic resources within the Town. b. Improperly deferring mitigation via Mitigation Measure CR-1 which requires preparation of future cultural resource studies and implementation of the recommendations contained in those studies. Moreover, because demolition of a historic resource generally results in a significant unavoidable impact (cf. League for Protection of Oakland’s Architectural and Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896), the EIR’s statement that Mitigation Measure CR-1 would reduce impacts to less than a significant level is not supported by facts or law. c. Reliance on policies that are inadequate per case law to avoid or mitigate significant impacts to tribal cultural resources. (See, e.g., Save Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -12- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 40. The EIR fails to adequately analyze and address significant impacts to Energy by, among other things: a. Ignoring the vast majority of physical impacts associated with increased electricity generation or the burning of fossil fuels. b. Failing to acknowledge significant impacts relating to transportation fuel consumption associated with the Project’s significant and unavoidable impacts to VMT. c. Containing inconsistent information related to regulations concerning renewable resource targets. d. Relying on dated and superseded greenhouse gas (“GHG”) reduction targets. e. Failing to discuss or analyze the Project’s consistency with the State’s 2017 Scoping Plan. 41. The EIR defers mitigation for impacts relating to Geology and Soils via Mitigation Measure GEO-1 by requiring that future paleontological resource studies be prepared and that measures in those studies be implemented. 42. The EIR fails to adequately analyze and address significant impacts relating to Greenhouse Gas Emissions by, among other things: a. Not providing supporting data to justify the GHG reductions that would purportedly result from Mitigation Measure GHG-1. b. Omitting discussion of other feasible mitigation measures to avoid or substantially reduce the Project’s significant and unavoidable GHG impact. (Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 91 [“Having recognized and acknowledged that incremental increases in greenhouse gases would result in significant adverse impacts to global warming, the EIR was now legally required to describe, evaluate and ultimately adopt feasible mitigation measures that would mitigate or avoid those impacts.”].) Failure to do so is particularly egregious as the Project results in GHG emissions that are more than five times the Town’s stated standard. c. Failing to reflect a good faith effort to analyze and disclose impacts as required by CEQA in that the EIR does not consider the State’s 2045 carbon neutrality goal merely 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -13- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF because it was enacted by executive order instead of by statute. 43. The EIR’s reliance on 2016-2017 data regarding the Project’s potential impacts on groundwater supplies or interference with groundwater recharge does not constitute substantial evidence supporting the conclusion that the Project results in less than significant hydrology impacts. It is also misleading and fails to present an accurate picture of the environmental setting, which includes extreme drought conditions. 44. The EIR fails to adequately analyze and address significant impacts relating to Land Use and Planning by, among other things: a. Failing to analyze the impacts of the General Plan Update, the “project” under consideration. b. Neglecting to reconcile the Project’s significant and unavoidable impacts to VMT and GHG with its conclusion that the Project is consistent with Plan Bay Area 2040. c. Omitting disclosure of the significant conflicts between the growth projected under the General Plan Update and that projected under Plan Bay Area 2040. d. Not addressing the Project’s conflicts with planning policies or regulations adopted for the purpose of avoiding or mitigating an environmental effect. 45. The EIR fails to adequately analyze and address significant Noise impacts by, among other things: a. Ignoring the potential for increased development Town-wide under the General Plan Update, and focusing instead on the Community Place Districts alone. Moreover, even as to these limited areas of study, the EIR acknowledges that the impacts may exceed Town noise thresholds, but the EIR nonetheless concludes that the impact is less than significant. This conclusion conflicts with, and is not supported by, substantial evidence in the record. b. Failing to analyze and address the Project’s significant construction noise impacts. c. Failing to consider the significant impacts associated with the use of pile drivers or vibratory rollers. d. Relying improperly on a ratio theory to justify its conclusion that the Project 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -14- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF will result in a less than significant impact related to roadway noise. (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692.) e. Containing no analysis of increased noise levels, especially on roadways where roadway noise already exceeds established noise levels. f. Failing to discuss or analyze other operational noise impacts, as required. For instance, the analysis does not discuss or address the requirement that new development be located in areas where noise levels are appropriate for the proposed use. (General Plan Update, pp. 8-26 to 8-27.) There is also no cumulative discussion of operational noise impacts or roadway noise levels, also as required. (CEQA Guidelines § 15130 [“An EIR shall discuss cumulative impacts of a project when the project’s incremental effect is cumulatively considerable.”].) 46. The EIR fails to adequately analyze and address significant impacts related to Population and Housing by, among other things: a. Failing to acknowledge and address the Project’s potential to induce substantial population growth (e.g., growth exceeding ABAG population forecasts). b. Ignoring the potential displacement impacts that could result from the increased densities allowed by the General Plan Update. 47. The EIR improperly defers analysis relating to the construction of necessary fire and police facilities. 48. The EIR fails to adequately analyze and address significant impacts related to Transportation by, among other things: a. Failing to consider and impose feasible mitigation measures and discuss feasible alternatives to address a significant and unavoidable impact related to transit vehicle operations. b. Failing to consider and impose feasible mitigation measures and discuss feasible alternatives to address a significant and unavoidable impact related to VMT. This is especially problematic given that the Project results in VMT that is 19 percent greater than the applicable VMT threshold. c. Relying improperly on a ratio theory to justify its conclusion that cumulative 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -15- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF VMT impacts will be less than significant. (Kings County Farm Bureau, supra.) 49. The EIR fails to adequately analyze and address significant impacts related to Utilities and Service Systems by, among other things: a. Failing to consider the impacts of relocated utilities as specified in Section XIX of Appendix G to the CEQA Guidelines. b. Not preparing and circulating a Water Supply Assessment for public review and comment along with the DEIR. c. Relying on rescinded and superseded Urban Water Management Plans as well as plans that did not account for Project growth. d. Failing to examine potential impacts relating to alternative water supply sources given the uncertainty associated with future water supplies. e. Ignoring the Project’s effect on the “near capacity” Guadalupe Landfill. 50. The EIR fails to adequately analyze and address significant impacts related to Wildfire by, among other things: a. Underreporting the number of buildings and persons in high and very high hazard zones. b. Failing to discuss or address pertinent planning policies related to the provision of secondary emergency access and adequacy of water storage for fire protection. c. Not considering whether the Project would expose people or structures to a significant risk of loss, injury or death involving wildfires. 51. The EIR fails to analyze a reasonable range of alternatives to the Project. Indeed, the FEIR analyzes only four alternatives to the Project, including the Low Growth Alternative, the Medium Growth Alternative, the High Growth Alternative, and the required No Project Alternative. The Findings acknowledges that none of these alternatives would avoid the Project’s significant unavoidable impacts to GHG and transportation. 52. All of the alternatives discuss and analyze the increased density inside and outside “Opportunity Areas,” which the DEIR states was eliminated due to its complex regulatory structure. As such, there is no valid comparison between the alternatives and the proposed Project, as required, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -16- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF but instead to a prior project that was admittedly eliminated from consideration. 53. Moreover, the FEIR narrowly confines and constrains the alternatives analysis contrary to CEQA by focusing only on 2,000 housing units as its objective. As such, the EIR narrowly confines and constrains the alternatives analysis contrary to CEQA. (See, e.g., North Coast Rivers Alliance v. A.G. Kawamura (2016) 243 Cal.App.4th 647 [alternatives analysis predicated on impermissibly narrow list of project objective is invalid].) 54. The EIR fails to properly analyze significant cumulative impacts by conflating the analysis of project-level and cumulative impacts, which is contrary to CEQA requirements that an EIR must separately consider project-level impacts and cumulative impacts. The EIR also conflates the separate and distinct questions of whether a cumulative impact is significant with whether the Project would make a cumulatively considerable contribution to such significant cumulative impact. (CEQA Guidelines § 15130.) Further, the EIR appears to only consider the impacts of the General Plan Update and no other reasonably foreseeable development, as required. (San Franciscans for Reasonable Growth v. City & County of San Francisco (1984) 151 Cal.App.3d 61, 74.) 55. The FEIR fails to contain a good faith effort at full disclosure in response to the comments on the DEIR. (CEQA Guidelines § 15204.) For instance, in response to 234 comments on the DEIR and RDEIR, the FEIR includes a minimal number of edits and revisions to the DEIR and RDEIR. 56. In response to comments on the DEIR and RDEIR, the FEIR acknowledges that it did not study the actual Project that was approved. Instead, the EIR studied the Town’s RHNA number plus a buffer as well as units in the pipeline and accessory dwelling units. In terms of commercial development, the FEIR acknowledges that it did not assume any additional commercial development beyond that which is already approved and pending. 57. Even though the General Plan Update increases densities by 100 percent or more and intensities by up to 500 percent, the EIR claims that the Project will not result in much new growth based on the amount of vacant land (which still totals nearly 700 acres) and artificially deflated “assumptions” about the percentage of already improved land that will be redeveloped. These assumptions are not supported by any evidence, let alone substantial evidence, as required. The FEIR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -17- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF claims that they rely on historic growth rates, but the assumptions are not correlated to such historic growth patterns or even the amount of actual acreage. Even if they were, they would not be reasonable or justified given the significant upzoning resulting from the Project and the legal and economic ramifications associated with such upzoning. 58. The EIR did not analyze any additional commercial development beyond what is already approved and pending. This ignores the General Plan Update’s significant increase in allowed floor area ratios from 0.5 up to 3.0. It also ignores the potential for additional commercial development at these increased intensities on vacant lands. 59. The Findings are not supported by substantial evidence in the record. The Findings contain no evidence to support the claim that specific economic, legal, social, technological, mobility, or other considerations make infeasible other mitigation measures and alternatives to address the Project’s significant and unavoidable GHG and Transportation (transit and VMT) impacts. 60. The Findings claim that the Project would impede substantial progress towards meeting the CARB 2017 Scoping Plan, SB 32, and EO B-55-18 targets, but that was not disclosed in the DEIR and thus not subject to public review and comment. The Findings also first acknowledge that the Project would exceed Plan Bay Area 2040 forecasts for household growth. As such, the Town has acknowledged new significant environmental impacts after release of the DEIR, requiring that the EIR be recirculated for public review and comment. (Public Resources Code § 21092.1; CEQA Guidelines § 15088.5.) Further, only in response to comments on the DEIR does the Town purport to explain how the redevelopment assumptions were derived. An agency cannot wait until the FEIR to provide critical information so as to immunize itself from critical public scrutiny and comment. (Save Our Peninsula Committee, supra [overturned EIR for, among others, providing new information about riparian water rights after release of the draft EIR].) 61. The Findings state that the significant VMT impacts would require regional action by multiple agencies in the South Bay, including the cities of Campbell and San Jose as well as the counties of Santa Clara and Santa Cruz. Despite this acknowledgment, the Findings do not include the relevant finding under CEQA Guidelines Section 15091 that: “Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -18- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF finding. Such changes have been adopted by such other agency or can and should be adopted by such other agency.” 62. It is well settled that alternatives must be considered for each significant impact, whether it can be feasibly mitigated or not. (Laurel Heights Improvement Assn., supra, 47 Cal.3d at 400-403 [held that an EIR must include a description of both mitigation measures and alternatives so that decision-makers will be provided with adequate information about the range of options available to reduce or avoid significant environmental impacts.].) Yet the Findings wrongly state that the EIR need only consider alternatives for significant unavoidable impacts. 63. The Statement of Overriding Considerations (“SOC”) is likewise not supported by substantial evidence in the record. It claims that the Project “updates outdated policies in a manner that meets current legal requirements for General Plans.” No specific citations to policies or authorities are provided to support this claim. 64. The SOC states that the Project focuses on infill and reuse development “with a focus on increasing opportunities for housing development in key areas of the Town through increased density and mixed-use projects where appropriate.” It also states that it promotes higher-density development and infill while preserving established residential neighborhoods. In reality, the Project increases development potential throughout the entire Town with the EIR claiming that the full development allowed will not occur based on unreasonable and unjustified deflated assumptions about redevelopment potential tied to historic growth rates. 65. The SOC also claims that the Project will reinvigorate downtown Los Gatos as a “special place for community gathering, commerce, and other activities for residents and visitors.” This benefit is directly at odds with what the Project actually does. The General Plan Update increases allowed intensities in Los Gatos’s unique and charming Downtown by over 200 percent. 66. Respondents’ actions in certifying the EIR and approving the Project were not in compliance with procedures required by law, were not supported by substantial evidence in the public record, were not reflected in legally adequate findings, and were arbitrary, capricious, and reflected a prejudicial abuse of discretion. 67. Petitioner has no plain, adequate and speedy remedy at law to redress the wrongs 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -19- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF described in this Petition. 68. Petitioner has performed any and all conditions precedent to filing this action and has exhausted any and all available administrative remedies to the extent required by law by, among other things, submitting written and oral comments objecting to the EIR and the Project, and the failure to comply with CEQA at each stage of the City’s administrative process. To the extent any matter raised in this Petition was not addressed in Petitioner’s comments, Petitioner is informed and believes that such matters were raised by other persons or entities who objected to the Project, or that Petitioner had no effective opportunity to raise such comments before the complained of actions were taken, or that Petitioner was otherwise excused from or not obligated to raise such issues before pursuing them in this action. 69. Pursuant to PRC § 21167.5, Petitioner has provided written notice of the commencement of this action to the Town. 70. Pursuant to PRC § 21167.7 and CCP § 388, Petitioner has or will provide written notice of this action, including a copy of this Petition and Complaint, to the State Attorney General. 71. Petitioner brings this action pursuant to PRC §§ 21168 & 21168.5, and CCP §§ 1085, 1088.5 & 1094.5, which require that an agency’s approval of a project be set aside if the agency has prejudicially abused its discretion. Prejudicial abuse of discretion occurs where the Town has failed to proceed in the manner required by law, the decisions are not supported by the findings, or the findings are not supported by the evidence. 72. Pursuant to CCP § 1085 and/or 1094.5, a writ of mandate should issue directing Respondents to rescind approval of the Project and prohibiting Respondents from taking any subsequent action to approve the Project until they have complied with CEQA, including, but not limited to, by preparing an environmental impact report that adequately analyzes and addresses all of the impacts associated with the Project. SECOND CAUSE OF ACTION (Declaratory and Injunctive Relief) 73. Petitioner hereby incorporates the allegations of the foregoing paragraphs as though set forth in full herein by this reference. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -20- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 74. An actual controversy exists between Petitioner and Respondents involving substantial questions regarding Respondents’ approval of the Project and certification of the EIR. Petitioner maintains that Respondents’ approval of the Project violates CEQA, as described above. Petitioner is informed and believes, and thereon alleges, that Respondents maintain the contrary. Accordingly, declaratory relief is appropriate and necessary to determine Respondents’ authority to certify the EIR and approve the Project. 75. Petitioner is informed and believes, and thereon alleges, that certification of the EIR and any implementation of the Project by Respondents will cause irreparable and permanent harm to Petitioner and be detrimental to the public at large as set forth above. 76. Petitioner has no adequate remedy at law to prevent or mitigate the imminent harm and actions described above, has exhausted all administrative remedies, and therefore issuance of preliminary and permanent injunctive relief is necessary to restrain and enjoin Respondents, and all others acting in concert with them from in any way seeking to implement the Project and other actions, pending final resolution of this action. 77. To remedy Respondents’ violations of law, as described above, Petitioner seeks a judicial declaration that Respondents’ approval of the Project was invalid and contrary to law, including, but not limited to, CEQA. Such a declaration is a necessary and proper exercise of the Court’s power to prevent future actions by Respondents in violation of the law. PRAYER FOR RELIEF WHEREFORE, Petitioner respectfully prays for judgment as follows: 1. For a Writ of Mandate: a. Directing Respondents to rescind, vacate and set aside Respondents’ certification of the EIR and approval of the Project; b. Commanding Respondents to prepare a revised draft environmental impact report and circulate it for public review and comment, consistent with the requirements of CEQA, and to comply with all other requirements of CEQA, prior to taking any subsequent action to approve the Project; 2. For the declaratory relief requested above; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2783/037011-0001 17916942 3 a06/23/22 -21- VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 3. For a temporary restraining order and/or preliminary injunction ordering the Respondents to refrain from proceeding with the Project (or any component thereof) while this action is pending. 4. For a permanent injunction ordering the Respondents to refrain from proceeding with the Project (or any component thereof) pending Respondents’ full compliance with the procedural and substantive mandates of CEQA; 5. For an award of attorney’s fees, litigation expenses, and costs as permitted or required by law, including but not limited to CCP § 1021.5, Government Code § 800, and other statutory and common law; and 6. For such other relief as the Court deems just and proper. Dated: July ___, 2022 RUTAN & TUCKER, LLP By: Matthew D. Francois Attorneys for Petitioner and Plaintiff Los Gatos Community Alliance From: Phil Koen Sent: Sunday, June 26, 2022 11:29:37 AM To: Matthew Hudes <MHudes@losgatosca.gov>; Mary Badame <MBadame@losgatosca.gov>; Rob Rennie <RRennie@losgatosca.gov>; Maria Ristow <MRistow@losgatosca.gov>; Marico Sayoc <MSayoc@losgatosca.gov> Subject: explanation of redevelopment percentages EXTERNAL SENDER Hello Rob, Mary, Matthew, Maria, and Marico, Please look at page 3 of the attached document I received under my Public Records request where Joel provides an explanation as to how the redevelopment percentages were determined. For over a year LGCA has asked for evidence which provides the basis for the redevelopment percentages which are used to determine the units shown in table 3.1 of the 2040 GP. The table clearly shows the redevelopment “assumptions” are the basis for determining the number of redeveloped net new units. Change the redevelopment assumption and the number of units redeveloped changes. Also note that table 3-1 (attached) which shows 3,738 total units developed under the draft 2040 GP as the “total residential buildout possible under the 2040 GP”. Note the table description does not say “probable” - it says “possible”. How do we know this to be true? Does this mean that 4,000 units are “not possible”, or 5,000 unit are “not possible”? Why not? The point here is that the percentage for each land use listed in table 3-1 represent just one assumption out of an infinite number of possible “reasonable” redevelopment assumptions. What if all the percentages were just 5 or 10 percentage points higher (e.g., 5% going to 10% or 15% going to 25%)? Why is this not a reasonable assumption? Developers will invest in the redevelopment of land based on their view of redevelopment economics. If they few the economics are favorable, redevelopment it will occur. This will drive more and more redevelopment. This higher level of investment means that the redevelopment percentage will increase. And the only control the Town has over redevelopment are the land use laws and zoning ordinances that “allow” this development. This is why the public needs to clearly understand the total residential development being “allowed” under the draft 2040 GP Land Use Element. This has not been disclosed. Another key point is that the Final EIR claims on p126 (also attached) that “the DEIR assumes the General Plan is a planning and guidance document and uses the potential growth the Town is likely to achieve by the year 2040 as it baseline for analysis of potential impacts”. It continues with “the projected 3,738 dwelling units is comprised of multiple parts and focuses on the total buildout for the Town not just a 20-year horizon”. This last statement seems to suggest that 3,738 units is the total buildout potential, not just what could be developed in a “20-year horizon”. How is this possible if the first statement discusses “likely to achieve by the year 2040” and the second sentence states “not just a 20-year horizon”. These statements regarding timelines appear to be in conflict and are confusing. To add to the confusion on p 130 of the FEIR, it says “the use of the higher number (3,738 units) ensures a “worse-case scenario” has been used in assessing potential significant impacts”. Again the 2040 GP and the DEIR appear to be in conflict in so much as the 2040 GP is using 3,738 units as the development likely to be achieved by 2040 while the FEIR represents that 3,738 is a “worse-case scenario”. 3,738 units can not represent both a likely outcome and at the same time the “worst-case” scenario. Does this make sense to any of you? Based on the above the TC should not adopt the land use element nor certify the FEIR since the “total residential buildout possible under the 2040 GP” has not been disclosed in the 2040 GP nor properly studied by the DEIR. The public deserves to fully understand the total impact of the proposed zoning changes on our Town. The 2040 GP does not disclose this and in fact misleads and confuses the public as to the “total residential buildout possible under the 2040 GP”. In an effort to frame the magnitude of the issue, using only the data provided by Staff in table 3-1, the LGCA has computed that the “total residential buildout possible” is 14,618 units. We have attached our analysis. Stated another way, if the 2040 GP allows 14,618 new units to be developed based on the proposed changes in land uses and zoning densities, the 2040 GP is projecting only 13% (1,959 divided by 14,618 ) of total land uses being redeveloped over 20 years. It is extremely reasonable to ask why is this the right answer as opposed to 25% or 30%? What substantial evidence was used to determine the numbers in table 3-1? Thank you. Phil Koen The total acres for each of the included General Plan Land Use designations in the Town’s jurisdiction. Is there a study for the redevelopment assumptions that are included in the General Plan Buildout Table (Table 3-1)? There is not a study. The assumed redevelopment potential was coordinated in conjunction with the consultant teams’ economist, Applied Development Economics. The overall analysis stems from a two-fold process, first looking at the overall market demand projection that included a 0.7% growth rate, and secondly the need to satisfy and comply with the mandated RHNA numbers. Thanks. Joel Paulson ● Community Development Director Community Development Department ● 110 E. Main Street, Los Gatos CA 95030 Ph: 408.354.6879 ● jpaulson@losgatosca.gov www.losgatosca.gov ● https://www.facebook.com/losgatosca General Plan update, learn more at www.losgatos2040.com CONFIDENTIALITY DISCLAIMER This e mail is intended only for the use of the individual(s) named in this e mail. If you receive this e mail and are not a named recipient, any use, dissemination, distribution or copying of the e mail is strictly prohibited. If you have received this communication in error, please immediately notify us at the above e mail address. 1 of 1 Public Records Exemptions Enclosed please find a copy of the response documents for your public records request. The following information is provided to explain the process employed to review and produce the response documents. Reason Description Pages GC 6522(a) 6522(a) The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. 1-2 Density Range (du/ac)Typical Density Redevelopment Assumptions Draft General Plan Land Use Designation Existing General Plan Draft General Plan Existing General Plan Draft General Plan Derived Draft GP Total Units Assumed Redevelp % New Housing (redev) New Housing (vacant) Low Density Residential 0 to 5 1 to 12 4 12 1,680 5%84 283 Medium Density Residential 5 to 12 14 to 24 10 20 3,430 10%343 224 High Density Residential 12 to 20 30 to 40 18 36 1,787 15%268 110 Neighborhood Commercial 10 to 20 10 to 20 16 18 910 10%91 26 Community Commercial 0 20 to 30 0 26 1,040 15%156 Mixed-Use 10 to 20 30 to 40 16 36 3,025 20%605 126 Central Business District 10 to 20 20 to 30 16 26 753 15%113 21 Office Professional 0 30 to 40 0 36 1,700 15%255 4 Service Commercial 0 20 to 30 0 26 293 15%44 10 Subtotal 14,618 1,959 804 Housing Units, New and Redeveloped 2,763 Housing Units, ADUs 500 Subtotal 3,263 Housing Units, Eixisting Projects 475 Total 3,738 On Jun 24, 2022, at 10:20 AM, Pat Sharp wrote: EXTERNAL SENDER Dear Marico When I voted for you, I thought you would look out for the best interests of the town. Now I am not so sure. I hope you stay close to the state mandated housing element and not vote for the multiple amounts from the planning Commission. We have serious water restrictions which will only get worse. There are dangerous fire conditions. We have given up on traffic problems. Please keep the housing element at a level the town can handle and look for ways the town can support affordable housing. Pat Sharp Sent from my iPhone From: Phil Koen Sent: Monday, June 27, 2022 8:03 AM To: Jennifer Armer <JArmer@losgatosca.gov>; Joel Paulson <jpaulson@losgatosca.gov> Cc: Town Manager <Manager@losgatosca.gov>; Gabrielle Whelan <GWhelan@losgatosca.gov>; Rob Rennie <RRennie@losgatosca.gov>; Matthew Hudes <MHudes@losgatosca.gov>; Mary Badame <MBadame@losgatosca.gov>; Maria Ristow <MRistow@losgatosca.gov>; Marico Sayoc <MSayoc@losgatosca.gov>; Rick Van Hoesen ; Catherine Somers 'Jim Foley' ; b Shelley Neis <sneis@losgatosca.gov>; Lee Fagot ; Joanne Rodgers ; Francois, Matthew Subject: Discussion of 2040 General Plan and FEIR for upcoming June 30 Special Council Meeting EXTERNAL SENDER Hello Jennifer and Joel, In reviewing FEIR, it appears there are conflicting descriptions as to the projected use of 3,738 units. I would appreciate your answer to the following questions: 1. In Response 9.2, the 3,738 units are described as “ the potential growth the Town is likely to achieve by the year 2040 as its (e.g., the General Plan) baseline for analysis of potential impacts”. Additionally, “the projected 3,738 dwelling units is comprised of multiple parts and focuses on the total buildout for the Town not just a 20-year horizon”. If the 3,738 units do focus on the total buildout for the Town, not just a 20-year horizon, why are the three segments that comprise the 3,738 all tied to either existing production, an 8-year timeline, or a 20-year projection? The first segment of 2,763 is based on an 8-year timeline of the 6th Cycle Housing Element (1,993 units) as well as a 20-30 percent buffer highly recommended by HCD to address the “no net loss rules”. The second segment is 500 dwelling units that reflect 20- year ADU production projection. The Third segment is 475 dwelling units for existing projects in the pipeline for construction. Given these segments, it is not apparent how the 3,738 units does focus on the total buildout for the Town, and not just a 20-year horizon, since there are no units included in the projection for residential units constructed beyond the 6th Cycle Housing Element. Where are the units that would be constructed beyond this 8- year timeline and why is the statement “focuses on the total buildout” accurate? 2. In Response 9.7, the reader is referred back to Response 9.2 for the formulaic approach just described. Therefore Response 9.2 and 9.7 are tied together. In 9.7 response we are told the 3,738 units ““ensures a worse-case-scenario” has been used in assessing potential significant impacts” for the analysis of potential environmental impacts. If we were told that 3,738 units is the growth the Town is “likely to achieve by the year 2040” and is the General Plan’s baseline for analysis of potential impact, how can 3,738 units also “ensure a worse-case-scenario” has been used in assessing potential significant impacts? The response in 9.2 and 9.7 conflict with one another. Could you please explain “likely to achieve” and “worse-case-scenario” in assessing potential significant impacts of 3,738 units? 3. Response 9.8 addresses a comment that the 2040 General Plan adoption should wait until the 2023 Housing Element Update is complete and analyze both. The response does not give a valid reason for not pursing this path, especially since the completion of a draft Housing Element is only months away. We respectively ask the question again. Why not first complete the 2023 Housing Element and then update the 2040 General Plan based on any required land use changes to meet the 6th Cycle RHNA allocation shortfalls? The advantage of doing this is obvious and compelling. Once fully informed if there is a shortfall in sites to meet the 6th Cycle RHNA allocation, the Town can make targeted adjustments in the General Plan and thus avoid the massive up zoning that is currently in the draft 2040 General Plan. A Program would be added to the draft 2040 General Plan to rezone for any RHNA shortfall. Additionally, the Town could revise the flawed DEIR by reducing the scope to the limited changes proposed by the Housing Element. Based on the site analysis that Town Council just reviewed, there is only a shortage of 102 units in the above-moderate income category with an excess of units in every other income category. This 102-unit shortage can be addressed in the 2040 General Plan along with increasing the density for Mixed Use Commercial and any other specific land use density changes required. This is the process which many local jurisdictions are taking, including Saratoga, Campbell, and Los Altos, all of whom have already issued draft 2023 Housing Elements for public review and comment. Given how far along the Town is in finalizing the 2023 Housing Element, and there is a hard deadline for submission of the 2023 Housing Element to HCD and no deadline for adopting the 2040 General Plan, what is the advantage to forcing the early and unnecessary adoption of the 2040 General Plan which relies on an outdated and irrelevant 2015 Housing Element. We can find no other local jurisdiction in ABAG who has taken the approach the Town is proposing. Perhaps you can give the public a reason as to why the Town is pursuing the current course as opposed to first completing the 2023 Housing Element and then update the 2040 General Plan based on a certified 2023 Housing Element. We know of no legal reason preventing the Town from taking this approach and the benefits are substantial. In advance, thank you for taking the time to respond to these questions. Phil Koen Los Gatos Community Alliance Town of Los G atos 2040 G enera l Plan Final Environmental Imp a ct Report Response to C omments Document R esponse 9.3 The commenter states that because the Draft EIR did not study the maximum build-out permitted under the land use designations in the 2040 General Plan, that the Draft EIR did not adequately analyze the potential significant and unavoidable impacts and is therefore fundamentally flawed. As noted in Response 9.2, a General Plan Draft EIR is not required to analyze the maximum allowable conditions but should instead rely upon realistic growth and development rates. (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 322). In this case, the Draft EIR looks at anticipated population growth rates, housing demand and commercial development, and the existing build-out of the Town with only a 5.92 percent lot vacancy rate to determine what a realistic baseline would be for the year 2040. The Draft EIR then utilizes this growth potential in determining potential significant environmental impacts that may result. It is unrealistic, given that 95 percent of the Town is already developed, to assume that all areas of the Town will be torn down and redeveloped under the 2040 General Plan land use densities as is proposed by the commenter. Nor is it appropriate to simply compare the existing plan with the proposed 2040 General Plan and ignore existing conditions. Therefore, no revisions to the Draft EIR are necessary in response to this comment. R esponse 9.4 The commenter again states that the Draft EIR should have looked at the maximum potential buildout of the proposed 2040 General Plan land use densities, rather than the actual growth potential analyzed in the document. In supporting this statement, the commenter cites pages 4.13- 2 and 2-15 of the Draft EIR which states: “In accordance with CEQA, a program-level EIR is obligated to analyze the maximum potential buildout allowed under the subject plan or program.” An EIR must evaluate a proposed general plan’s revision effects on the existing physical environment. (Environmental Planning and Information Council v. County of El Dorado (1982) 131 Cal.App.3d 354; see also CEQA Guidelines § 15125(e)). The General Plan EIR need not be as detailed as an EIR for the specific projects that will follow (CEQA Guidelines § 15146). Its level of detail should reflect the level contained in the plan or plan element being considered (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351). Here, the Draft EIR looks at the effects of the proposed 2040 General Plan on housing and land use based upon actual conditions and growth rates within the Town. Based on the above, page 4.13-2 of the Draft EIR is revised as follows: In accordance with CEQA, a program-level EIR for a general plan must look at the plan’s impacts on the physical environment is obligated to analyze the maximum potential buildout allowed under the subject plan or program. It has been calculated that the Los Gatos 2040 General Plan accommodates a potential for 3,738 dwelling units by the year 2040, and the EIR has used this figure to calculate and project environmental impacts. 128 From: Abbie Steinbacher Sent: Monday, June 27, 2022 10:36 AM Subject: General Plan 2040 EXTERNAL SENDER Hi, My family and I have lived in Los Gatos for the past 7 years and are hopping to make this our forever town. I am reaching out to voice my opinion of NOT supporting General Plan 2040. My husband and I will be voting for Town Council this fall based on your choices — and will be encouraging our friend group here to do the same. Best, Abbie Steinbacher From: THOMAS J. FERRITO Sent: Monday, June 27, 2022 2:55 PM To: Rob Rennie <RRennie@losgatosca.gov>; Maria Ristow <MRistow@losgatosca.gov>; Mary Badame <MBadame@losgatosca.gov>; Marico Sayoc <MSayoc@losgatosca.gov>; Matthew Hudes <MHudes@losgatosca.gov>; Town Manager <Manager@losgatosca.gov> Subject: The General Plan EXTERNAL SENDER Dear Town Council Members: It was my privilege to have served on the Los Gatos Town Council for twelve years eight months between 1978 and 1990. During that time I fought daily to maintain the quality of life of Los Gatos as well as it's the small town charm and character by adopting and maintaining restrictive land use policies. Among other things, I fought developments proposing increased density (except along transit routes to encourage ridership), inordinately large homes and secondary dwelling units which would have caused increased parking and traffic issues for which the town's infrastructure was, and still is, inadequate. During subsequent decades various Town Councils failed to continue this fight while the State has took over some local land use policies and mandated others to the detriment of the small cities and towns in California. The State is continuing to do so, and unlike Los Gatos, some cities and towns have, and are, opposing the State. Unfortunately, it appears that, instead of joining in opposition to the local land use policies and mandates of the State, the Los Gatos Town Council is poised to "appease" the State (as the press recently quoted Council Member Ristow) by doubling housing density. San Jose can be as dense and high rise at it wishes, but Los Gatos need not be the same as San Jose. I urge the Town Council to fight for the quality of life of the residents of Los Gatos by rejecting the staff General Plan proposal and by joining other small cities and towns opposing the land use policies and mandates of the State. Tom Ferrito