Report and Actions regarding Albright Way Initiative�.0
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DATE:
TO:
FROM:
SUBJECT:
MEETING DATE: 03/03/14
ITEM NO: 5
COUNCIL AGENDA REPORT
FEBRUARY 27, 2014
MAYOR AND TOWN COUNCIL / v
GREG LARSON, TOWN MANAGER
ROBERT SCHULTZ, TOWN ATTORNEY ('Tk,-
REPORT AND ACTIONS REGARDING ALBRIGHT WAY INITIATIVE
A. ACCEPT REPORT PURSUANT TO CALIFORNIA ELECTIONS CODE § 9212
B. ADOPT RESOLUTION CALLING A SPECIAL ELECTION; REQUESTING THE
COUNTY BOARD OF SUPERVISORS TO CONSOLIDATE THE SPECIAL
MUNICIPAL ELECTION WITH THE JUNE 3, 2014 STATEWIDE DIRECT
PRIMARY ELECTION; AND DIRECTING THE TOWN ATTORNEY TO
PREPARE AN IMPARTIAL ANALYSIS
C. APPROVE SETTLEMENT AGREEMENT BETWEEN LOS GATOS CITIZENS
FOR RESPONSIBLE DEVELOPMENT, ALBRIGHT WAY INITIATIVE
PROJECT SPONSORS, AND TOWN OF LOS GATOS, IF ONE IS PRESENTED
D. ACCEPT REPORT FROM COUNCIL AD HOC COMMITTEE ON ALBRIGHT
WAY INITIATIVE AND PROVIDE DIRECTION REGARDING PLACING A
TOWN - SPONSORED INITIATIVE ON THE JUNE 3, 2014 BALLOT
E. PROVIDE DIRECTION REGARDING A TOWN POSITION ON AND /OR
SUBMISSION OF ARGUMENTS REGARDING THE ALBRIGHT WAY
BALLOT MEASURE
RECOMMENDATION:
1. Accept report pursuant to California Elections Code § 9212
2. Adopt resolution calling a special election; requesting the County Board of
Supervisors to consolidate the special municipal election with the June 3, 2014
Statewide direct primary election; and directing the Town Attorney to prepare an
impartial analysis
3. Approve settlement agreement between Los Gatos Citizens for Responsible
Development, Albright Way Initiative Project Sponsors, and Town of Los Gatos, if one is
presented
PREPARED BY: PAMELA JACOBS
ASSISTANT TOWN MANAGER
Reviewed by: Assistant Town Manager _lpfown Attorney
14 Council Reports \3 -3 Albright staff report.doc
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: REPORT AND ACTIONS REGARDING ALBRIGHT WAY INITIATIVE
FEBURARY 27, 2014
4. Accept report from Council Ad Hoc Committee on Albright Way initiative and
provide direction regarding placing a Town - sponsored initiative on the June 3, 2014
ballot
5. Provide direction regarding a Town position on and/or submission of arguments
regarding the Albright Way ballot measure
ALTERNATIVE:
Alternatively, the Council may take the following action:
• Adopt the ordinance without alteration, using the Town's 2013 Project Environmental Report to
meet CEQA requirements.
BACKGROUND:
On February 3, 2014, the Town Council accepted the Election Official's certification of the sufficiency
of the Albright Way petition and directed staff to prepare a report pursuant to California Elections Code
§ 9212. The motion directing the 9212 report included specific questions to be addressed in the report.
The Council also approved the establishment of a Council Ad Hoc Committee to explore the option for a
Town- sponsored initiative to be placed on the June 3, 2014 ballot.
DISCUSSION:
Subsequent to the February 3 Council meeting, Town staff entered into an agreement with LSA
Associates to prepare the 9212 report. LSA was selected among three firms with expertise in municipal
land use and development policies and practices. Based on LSA's experience, capacity, references and
independence, it was determined that LSA would be the best firm to prepare the report for the Town.
Also, subsequent to the February 3 Council meeting, the Mayor appointed Council member Barbara
Spector and himself to serve on the ad hoc committee to explore the possibility of a Town - sponsored
initiative.
Concurrent with the preparation of the 9212 report and the work of the ad hoc committee, Town staff
entered into negotiations with petitioners (Los Gatos Citizens for Responsible Development) to a lawsuit
against the Albright Way Planned Development and the Albright project sponsors. The attempt to
negotiate was based on comments made by John Shepardson, one of the petitioners, at the February 3
meeting, in which he offered to dismiss current appeals with respect to the project if certain terms were
met.
§ 9212 Report Findings
The report prepared by LSA Associates (Attachment 1) presents findings regarding 1) the differences
between the Planned Development project approved by Council in June 2013 and the project that would
be implemented as part of the Initiative and accompanying Albright Specific Plan, and 2) responses to
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: REPORT AND ACTIONS REGARDING ALBRIGHT WAY INITIATIVE
FEBURARY 27, 2014
the Town Council's specific questions about the effects of the Initiative raised at the February 2
meeting.
Two questions asked by Council were not included in the 9212 report, as they concern election costs
which are determined by the County Registrar of Voters (ROV). Staff obtained the following responses
from the ROV:
9212 (a)(1) — Fiscal Impact
1. Does the volume of material printed (e.g., the complete text of the proposed initiative) affect the
cost?
Yes, the ROV charges a unit cost of $5,961 per page. If the full text of the initiative, and all
exhibits and attachments, is included on the ballot, the estimated cost would be $1,806,183.00
(303 pages x $5,961).
2. Does the date of the election — stand alone, consolidated with County election, consolidated with
statewide General Election — affect the cost?
Yes, a stand -alone special election would cost $344,000 for a 6 -page measure; a consolidated
election with the statewide Primary election in June would cost $83,000 for a 6 -page measure; a
consolidated election with the November 2014 General Election would cost an additional
$52,200 for a 6 -page measure (in addition to $53,200 for the Town Council election at that time).
Special Election
California Elections Code § 9214 requires the Town Council to either:
• order a special election at which time the measure, without alteration, shall be submitted to a
vote of the voters of the Town, or
• adopt the ordinance, without alteration.
If the Council orders a special election, the attached resolution (Attachment 2) would implement this
action. The proposed resolution calls a special election and places the measure on the ballot. Further, it
calls for the preparation of an impartial analysis by the Town Attorney pursuant to Elections Code
§ 9280, which allows the Town Council to direct the Town Attorney to prepare an impartial analysis of
the measure showing the effect of the measure on the existing law and on the operation of the measure.
Finally, the resolution authorizes the County Elections Department to assist the Town in holding the
election, which would be consolidated with the June 3, 2014 statewide primary election, pursuant to
S 1405.
At its February 18 meeting, the Town Council adopted a budget adjustment as part of the mid -year
budget review to cover the cost of a single ballot measure special election.
PAGE 4
MAYOR AND TOWN COUNCIL
SUBJECT: REPORT AND ACTIONS REGARDING ALBRIGHT WAY INITIATIVE
FEBURARY 27, 2014
Settlement Agreement
Pursuant to Council direction, the Town Attorney, with support from Town staff, has been negotiating
with the petitioners and the project sponsors for a potential settlement that would address all parties'
concerns regarding the Albright Way Initiative. If the parties reach tentative agreement prior to the
March 3 Town Council meeting, staff will provide an Addendum or Desk Item with the proposed
settlement agreement for Council's consideration.
Council Ad Hoc Committee Report
The Council Ad Hoc Committee, comprised of Mayor Leonardis and Council member Spector has met
twice to discuss a possible Town - sponsored initiative to place on the June ballot. If the settlement
negotiations are not successful, staff will provide an Addendum or Desk Item seeking Council direction
on placing a Town- sponsored initiative on the June ballot, pursuant to the discussion of the Ad Hoc
Committee.
Written Arguments and Positions
For either the Albright Way Initiative or a Town - sponsored initiative, the Town Council may determine
to submit arguments against or in support of the initiative. The County Registrar of Voters has set March
11 as the deadline for the submission of the 300 word arguments for and against any ballot measure and
March 18 as the deadline for the 250 word rebuttals for and against any ballot measure.
Elections Code § 9282 authorizes proponents of a petition ballot measure to submit the argument in
support of that measure and authorizes the Town Council to submit or authorize submission of the
argument against the ballot measure. If the Town Council does not submit or authorize submission of an
argument, then the Clerk Administrator will select the arguments for and against the ballot measure
pursuant to Elections Code § 9287.
The Council may authorize one or two Council members to write an argument for or against a ballot
measure which other individual Council members could then review and sign if they chose to do so, as
the Council did in 2007.
In 2007, the Town Council did not take a position for or against either the petition skateboard park ballot
measure or the Town- initiated appointed clerk/treasurer ballot measure. However, the Council did
authorize one member of Council to write and submit an argument against the skate park measure,
which was then subsequently signed by two other members of Council. Regardless of Council action or
authorization, Council members may individually take a position in favor of or against any ballot
measure and submit arguments accordingly.
Council should provide direction to staff regarding submission of arguments, so that this can be
agendized, if needed, prior to March 11. There are no deadlines regarding the Town taking a position on
an initiative.
PAGE 5
MAYOR AND TOWN COUNCIL
SUBJECT: REPORT AND ACTIONS REGARDING ALBRIGHT WAY INITIATIVE
FEBURARY 27, 2014
CONCLUSION:
After accepting the 9212 report, the Town Council should either adopt a resolution calling the special
election to be held on June 3, 2014 or adopt the ordinance without alteration. Council should also take
action regarding the settlement agreement if such agreement is provided prior to the Council meeting;
provide direction on language for a Town - sponsored ballot initiative if that is brought forward to
Council; and provide direction on submission of arguments for or against either ballot measure, as
appropriate.
ENVIRONMENTAL ASSESSMENT:
Is not a project defined under CEQA, and no further action is required.
FISCAL IMPACT:
The cost for a special election to be held on June 3, 2014 is approximately $83,000 for a 6 -page
initiative. If the Albright Way Initiative is placed on the ballot, the cost would be $83,000. If a 6 -page
Town - sponsored initiative is placed on the ballot, the cost would be another $83,000.
Attachments:
1. Report Pursuant to California Elections Code § 9212
2. Resolution Calling the Election
3. Public comments received from 12:46 a.m. February 4, 2014 through 12:00 p.m. Thursday,
February 27, 2014
Distribution:
LezLi Logan, proponent
Philip Albanese, proponent
John Shepardson, Los Gatos Citizens for Responsible Development
Andrew Wu, Los Gatos Citizens for Responsible Development
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REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE'
LSA ASSOCIATES, INC.
FEBRUARY 26, 2014
INTRODUCTION
The purpose of this report is to provide fair, impartial and factual information to the Town of Los
Gatos about the planning policy, fiscal, infrastructure, land use, and other implications of the
Initiative to Amend the Los Gatos General Plan and Zoning Code and Adopt a Specific Plan for
Development of 90 -160 Albright Way and 14600 Winchester Boulevard (Albright Specific Plan
Initiative). As described in more detail below, the Initiative seeks to repeal approvals made in June
2013 for development on a 21.6 -acre project site and replace them with the Albright Specific Plan.
Development on the project site would be required to comply with the provisions of the Albright
Specific Plan.
This report was prepared pursuant to State of California (State) Election Code Section 9212, which
allows the Town of Los Gatos (Town) Council to authorize preparation of a report on the effects of an
initiative, covering any topics for which the Town Council desires more information. As required by
Section 9212, this report was prepared and submitted within 30 days of the Town Council's
acceptance of the Town Clerk Administrator's certification of the sufficiency of the Initiative petition,
which was dated February 3, 2014. After reviewing this report, the Town Council must either adopt
the Initiative without any amendments or schedule an election for consideration of the Initiative by
Town voters. On February 3, 2014, the Town Council certified the petition signatures and ordered the
preparation of this report pursuant to State Election Code Section 9212.
This report is intentionally concise in order to be accessible to decision - makers and the general
public, and it focuses specifically on: 1) the differences between the project approved in June 2013
(2013 Project) and the project that would be implemented as part of the Initiative and accompanying
Albright Specific Plan, and 2) responses to the Town Council's questions about the effects of the
Initiative identified at its meeting on February 3, 2014.
EXECUTIVE SUMMARY
The Albright Specific Plan Initiative would rescind Town Ordinance 2216, which encompasses the
approvals associated with the 2013 Project. In place of these approvals, the Initiative would allow for
the implementation of the Albright Specific Plan, which establishes the policies and development
standards for the project site. In general, the physical aspects of the Specific Plan would be similar to
the 2013 Project, with the removal of all of the existing buildings on the site and other ancillary site
structures, and the construction of up to four new office and research and development (R &D)
buildings comprising a maximum of 485,000 square feet, or a net increase of approximately 235,000
The formal name of the Albright Specific Plan Initiative is "Initiative to Amend the Los Gatos General Plan and
Zoning Code and Adopt a Specific Plan for Development of 90 -160 Albright Way and 14600 Winchester Boulevard."
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ATTACHMENT
LSA ASSOCIATES. INC. REPORT ON THE ALBYIOHT SPECIFIC PLAN INITIATIVE
FEBRUARY 3011
square feet. Parking, circulation, and landscaping facilities would also be developed on the site. Key
physical differences between the 2013 Project and Specific Plan would include 11 more parking
spaces developed under the Specific Plan, and the potential for the development of elevated walkways
connecting the buildings as part of the Specific Plan (the project sponsor estimates that these elevated
walkways would comprise a total of approximately 2,900 square feet). The Specific Plan would also
include the payment of similar fees as the 2013 Project, including a Traffic Impact Mitigation Fee,
school impact fees, and a Community Benefit Payment. The Community Benefit Payment, a
voluntary payment, would not include square footage associated with the elevated walkways unless
voluntarily agreed to by the project sponsor.
Key differences between the two projects are primarily procedural and are summarized below (and
discussed in more detail in this report):
• California Environmental Quality Act (CEQA). Per State law, the Specific Plan would not
be subject to the requirements of CEQA and preparation of an Environmental Impact
Report (EIR) would not be required. However, an EIR was prepared for the 2013 Project,
which is almost identical to the Specific Plan. In addition, the Specific Plan incorporates all
the mitigation measures identified in the Final EIR prepared for the 2013 Project.
• Architecture and Site (A &S) Review and Approval. The Initiative would allow for the
following procedural differences between the 2013 Project and Specific Plan:
• Under the 2013 Project, the Town Council would be able to make changes to the
approved plans proposed by the project sponsor at any time (subject to the project
sponsor's vested rights to continue with project development once substantial
construction is underway); under the Specific Plan, only Town voters would be able to
make changes to the Specific Plan until 2021 (after 2021, the Town Council would be
able to make changes to the Specific Plan).
• Under the 2013 Project, changes to approved land uses (e.g., the introduction of
residential or public retail uses) could be made by the Town Council; under the
Specific Plan, such changes could only be made by Town voters until 2021.
• Under the 2013 Project, significant changes to the project (e.g., increased building
height or reduced open space) would be made by the Town Council; under the Specific
Plan, such changes would be made by the Planning Commission, with appeals to the
Town Council.
• Conditions of Approval. As part of the 2013 Project approval process, the Town Council
added conditions that would be required of the project sponsor. The Town Council would
not be able to similarly condition the Specific Plan. However, the Specific Plan effectively
incorporates the conditions of approval required of the 2013 Project (see Table 1 in this
report for additional information).
PROJECT SITE
The project site (i.e., the site of the 2013 Project and the Albright Specific Plan) is a 21.6 -acre site in
the northern part of the Town of Los Gatos, encompassing the properties located at 90 -160 Albright
Way and 14600 Winchester Boulevard. Figure 1 shows the location of the project site and surround-
ing land uses. The site is bordered on the north by State Route 85 (SR 85); on the east by Los Gatos
Creek, an adjacent trail, and associated open space (under the jurisdiction of the Santa Clara Valley
Water District); on the south by office and residential uses; and on the west by Union Pacific Railroad
tracks and Winchester Boulevard.
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SOURCES: GOGGLEEARTH, APRIL2013 ;LSA ASSOCIATES, INC.,2014. Project Location and Regional Vicinity
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LEA ASSOCIATES, INC.
FEBRUARY 2014
This page intentionally left blank.
REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
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REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
The site currently contains office uses and surface parking, which were developed in the 1970s and
1980s, with associated landscaping. Until recently, the site contained a total of 10 one- and two -story
buildings comprising a total of 251,196 square feet of building space. However, as of February 2014,
seven of the 10 buildings on the site (comprising 157,146 square feet of building space) have been
demolished in preparation for the approved development on the site. Thus, the three remaining
buildings on the site currently contain 94,050 square feet of building space.
2013 PROJECT
The Albright Office Park, PD -12 -001, S -12 -078 (2013 Project), which was approved by the Town
Council in June 2013, included the development of a new office and research and development park
on the 21.6 -acre site. As approved, the project entailed the removal of all of the existing buildings on
the site and other ancillary site structures, and the construction of up to four new office and R &D
buildings comprising a maximum of 485,000 square feet, or a net increase of approximately 235,000
square feet.' Parking, circulation, and landscaping facilities would also be developed. Figure 2 is the
site plan of the 2013 Project. Following is a summary of the key components of the project.
Office and R &D Space. Four office /R &D buildings would be developed on the site as shown in
Figure 2, with the objective of creating new "Class A" office space, suitable for use as corporate
headquarters. The maximum amount of building space would be limited to 485,000 square feet.
Buildings 1 and 4 would be limited to a maximum of 50 feet in height, including rooftop features, and
would be oriented along a roughly east/west axis. Buildings 2 and 3, oriented along a roughly
north/south axis, would be limited to a maximum height of 65 feet, including rooftop features. The
office and R &D uses that would be permitted on the site include office uses (i.e., corporate,
administrative, and business office uses); office- serving uses designed to serve those employed at the
site and their clients (e.g., recreational facilities, cafeterias, and conference facilities); and all uses
permitted in the Town's Controlled Manufacturing (CM) and Office (0) zones, excluding medical
and dental offices. The architecture of the office and R &D buildings is characterized by colored
masonry with clear glass, aluminum bay windows, aluminum clad columns, and metal sunshades.
Circulation and Parking. As part of the 2013 Project, the Albright Way and Albright Court right -of-
way easements would be vacated and conveyed back to the underlying property owner. Primary
access to the site would be via Winchester Boulevard. Two existing driveways would be retained
(allowing only for right turns in and out of the site) and a new driveway located approximately 200
feet south of the existing Albright Way Driveway would be developed. The new driveway would be a
four -way signalized intersection aligning with the existing Courtside Club entrance to the west of
Winchester Boulevard.
'As originally proposed, the 2013 Project included 550,000 square feet. The modifications to the project approved
by the Town in June 2013 include: reducing total office and R &D space to 485,000 square feet from 550,000 square feet;
limiting the height of Buildings 1 and 4 to a maximum of 50 feet instead of 65 feet; and allowing for the parking garage to
be 35 feet tall including solar panels. The EIR for the project, which was certified in June 2013, and associated technical
documents, analyzed the environmental effects of the original 550,000- square -foot proposal.
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The 2013 Project would extend an existing Class II bike lane in both the north and south directions on
Winchester Boulevard between Wimbledon Drive and the Union - Pacific Railroad tracks. The project
also would provide private access to the Los Gatos Creek trail access at the terminus of Charter Oaks
Drive, immediately to the southeast of the project site. In addition, future tenants would be
encouraged to implement a Transportation Demand Management (TDM) program to reduce single -
occupancy vehicle trips.
The project would provide 1,824 parking spaces (although a minimum of 3.3 spaces per 1,000 square
feet of office and R &D space, or 1,601 spaces total, would be required by the PD overlay). A parking
garage would be developed on the site, east of Buildings 2 and 3, and would be limited to a maximum
of 35 feet in height inclusive of solar panels. Sub -grade parking would be allowed pursuant to future
review by the Town. All parking not provided in the parking garage would be provided as surface
parking. Furthermore, as part of the 2013 Project, no "freeway visible signage" would be permitted.
Open Space. The 2013 project includes approximately 8.1 acres of open space, generally oriented
around Buildings 1 through 4. The project would require the removal of 308 protected trees (i.e.,
those covered by the Town's Tree Protection Ordinance), while approximately 248 protected trees
would be retained. Five non - protected trees would be removed and six non - protected trees would be
retained. Twelve protected trees would be transplanted and 656 new trees would be planted. In
summary, 313 trees would be removed, 12 protected trees would be transplanted, 254 trees would be
retained, and 656 new trees would be added. There were 579 trees on the site, and after the 2013
Project is complete, there would be 922 trees on the site.
Zoning Amendment. The 2013 Project rezoned the project site by replacing a Planned Development
CM:PD zone (Controlled Manufacturing with a Planned Development overlay zone) with a new
CM:PD overlay. The PD overlay zone, which is intended to ensure orderly planning and quality
design that is in harmony with surrounding uses, designates site - specific zoning regulations for the
site. Development of the site was required to comply with the standards and guidelines established in
the PD overlay, as determined by the Town through the A &S approval.
Approvals. The 2013 Project required certification of a Final EIR, which identified the physical
effects of the project and mitigation measures to reduce significant effects? In certifying the EIR, the
Town Council made findings for each significant effect identified in the Final EIR and adopted each
identified mitigation measure. The Town Council also adopted the proposed rezoning (the PD
overlay) and approved the A &S application, which allows for implementation of the specific
development plan for the site described above. Any changes or modifications made to the approved
A &S plans would be approved by the Community Development Director, the Development Review
Committee, the Planning Commission, or Town Council, depending on the scope of the changes.
Town Ordinance 2216 and A &S application S -12 -078, which formally approved the project, include
performance standards and conditions of approval imposed by the Town on the project. The project
also included a Traffic Impact Mitigation Fee of $149,280, a payment to construct the Lark Avenue
and University Avenue traffic signal of $184,089.52, school impact fees established by the Los Gatos
Union School District and Los Gatos - Saratoga Union High School District, and a Community Benefit
Payment of $1 per square foot of office and R &D space, or $485,000. The Community benefit also
I The EIR resulted from a successful challenge to a Mitigated Negative Declaration prepared for an earlier (but
similar) iteration of the 2013 Project.
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LOA ASSOCIATES, INC. REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
FEBRUARY 2014
includes the provision of excess soil from the site for planned improvements to the Los Gatos Creek
Trail.
SPECIFIC PLAN PROJECT
The Albright Specific Plan Initiative would rescind Town Ordinance 2216, which encompasses the
Planned Development approvals associated with the 2013 Project. In place of these approvals, the
Initiative would allow for the implementation of the Albright Specific Plan, which establishes the
policies and development standards for the project site. Per Government Code Section 65451, a
Specific Plan comprises a special set of development standards — typically spelled out in great detail —
that apply to a specific geographic area. Specific Plans are commonly used by cities and counties to
address planning issues in a particular area, and are often used by developers to allow for the
implementation of a unified development plan on a large site. Specific Plans, as authorized by State
law, are not part of an agency's General Plan.
An initiative allows voters to place pieces of legislation on the ballot, including land use planning
legislative actions, for consideration by voters. The courts have imposed few limitations on the use of
citizen petition initiatives to enact land use changes in a community, allowing many land use planning
initiatives to withstand litigation.° Per CEQA Guidelines Section 15378(b)(3), a Specific Plan
approved under an initiative would not be subject to the CEQA, and would not require an EIR or
other environmental review document. The stated intent of this Initiative is to avoid an "unnecessarily
drawn out litigation process," allowing the project site to be developed promptly, pursuant to the
Albright Specific Plan.
In general, the physical aspects of the Albright Specific Plan Initiative project would be similar to the
2013 Project (although the number of parking spaces provided would differ slightly and the Specific
Plan would include elevated walkways totaling approximately 2,900 square feet according to the
project sponsor). Figure 3 shows the conceptual land use plan included in the Specific Plan. The key
elements of the project that would be developed under the Albright Specific Plan are summarized
below, with a focus on characteristics that may differ from the 2013 Project. Table I provides a
comparison of key characteristics of the 2013 Project and Albright Specific Plan.
Curtin Jr, Daniel J., and M. Thomas Jacobson, 1991. Growth Control by the Ballot Box: California's Experience.
June 1.
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LEA ASSOCIATES, INC. REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
FEBRUARY 2014
The 2013 Project and Specific Plan would differ primarily in terms of procedural characteristics, as
identified in Table 1 and discussed in "Approvals," below.
Office and R &D Space. Similar to the 2013 Project, the Albright Specific Plan would allow for
demolition of all structures on the site and development of a maximum of 485,000 square feet of
office and R &D space in four buildings. Buildings I and 4 would be approximately 105,300 square
feet and Buildings 2 and 3 would be approximately 137,200 square feet. Building heights would be
the same as specified for the 2013 Project. Unlike the 2013 Project, the Specific Plan would allow for
the development of elevated walkways and pedestrian bridges, which would ostensibly provide
pedestrian access between buildings (however, the Specific Plan is vague in terms of the definition of
"usable" in this context).
The Specific Plan does not identify an upper limit of elevated walkway space, which (along with
other "non- usable" space like trash enclosures) would not be counted against the maximum 485,000
square feet of interior office and R &D space that could be developed on the site. The project sponsor
has stated that approximately 2,900 square feet of new elevated walkway space could be developed
on the site.
Circulation and Parking. The Specific Plan circulation plan would be substantially similar to that
proposed as part of the 2013 Project, with vacation of Albright Way and Albright Court, the retention
of two driveways along Winchester Boulevard, and the development of a new signalized intersection
and driveway approximately 200 feet south of the existing Albright Way driveway. Bike and
pedestrian facilities would be substantially the same between the 2013 Project and Specific Plan. The
Specific Plan and 2013 Project require parking to be provided at a minimum ratio of 3.3 spaces per
1,000 square feet of commercial and R &D space (1,601 spaces), although the Specific Plan indicates
that 1,835 spaces "should" be provided on the site at full buildout, including 945 surface parking
spaces and 890 garage parking spaces. The parking proposed as part of the 2013 Project (1,824
spaces) would also exceed the minimum required for the Specific Plan (1,601 spaces). Similar to the
2013 Project, the Specific Plan would allow for the development of one parking garage. In addition,
similar to the 2013 Project, future tenants would be encouraged to implement a TDM program to
reduce single- occupancy vehicle trips. Furthermore, as part of the Specific Plan, no signage may be
visible from SR 85 (the 2013 Project requires that no "freeway visible signage" be permitted).
Open Space. The Specific Plan, similar to the 2013 Project, would provide for the development of
approximately 8.1 acres of open space (according to the Site Plan in the Specific Plan), and that open
space would be developed in approximately the same configuration as the 2013 Project. The existing
private site access point to the Los Gatos Creek Trail, at the southeast corner of the project site near
Charter Oaks Drive, would be retained under the Specific Plan. The Specific Plan tree retention/
removal plan is similar to that proposed as part of the 2013 Project: 313 trees would be removed, 12
protected trees would be transplanted, 254 trees would be retained, and 656 new trees would be
added. There were 579 trees on the site, and after the Specific Plan is complete, there would be 922
trees on the site.
Zoning Amendment. The Initiative would rescind the amendment to the Zoning Ordinance
undertaken as part of the 2013 Project (under which the zoning designation for the site (CM:PD) was
replaced by a new CM:PD designation) and would amend the zoning of the project site to Albright
Specific Plan. Development of the site would thus be governed by the Specific Plan. Specific
amendments to the General Plan and Zoning Ordinance that would be required under the Specific
PM01011„cm Wb,4 \PROOUCIEWWli, Re,ie%u coo, R,n z -2F14 x=6110 13
LOA ASSOCIATES. INC.
FEBRUARY 9014
REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
Plan Initiative are described in the "Responses to February 3, 2014 Town Council" section of this
report.
Approvals. Approvals for implementation of the Specific Plan project would be procedurally
different than those associated with the 2013 Project. Key differences are summarized below:
• CEQA. As indicated above, per State law, the Specific Plan would not be subject to the
requirements of CEQA and preparation of an EIR would not be required. The Initiative
process would thus not include public review and other CEQA- established procedural and
substantive requirements of the project's environmental impacts, including the identifica-
tion of mitigation measures to reduce environmental impacts. However upon close review
of the Initiative language, the Specific Plan has incorporated all the mitigation measures
identified in the Final EIR prepared for the 2013 Project. In most cases, these mitigation
measures have been incorporated verbatim (or nearly verbatim) into the Specific Plan.
• A &S Review and Approval. Similar to the 2013 Project, the Community Development
Director would be the primary administrator of the approved plans (in this case the Specific
Plan), and would be responsible for reviewing the individual building, construction and
development plans for consistency with the Specific Plan. However, the Initiative would
allow for the following procedural differences between the 2013 Project and Specific Plan:
o Under the 2013 Project, the Town Council would be able to make changes to the
approved plans proposed by the project sponsor at any time (subject to the project
sponsor's vested rights to continue with project development once substantial construc-
tion is underway); under the Specific Plan, only Town voters would be able to make
changes to the Specific Plan until 2021 (after 2021, the Town Council would be able to
make changes to the Specific Plan).
o Under the 2013 Project, changes to approved land uses (e.g., the introduction of
residential or public retail uses) could be made by the Town Council; under the
Specific Plan, such changes could only be made by Town voters until 2021.
o Under the 2013 Project, significant changes to the project (e.g., increased building
height or reduced open space) would be made by the Town Council; under the Specific
Plan, such changes would be made by the Planning Commission, with appeals to the
Town Council.
Conditions of Approval. As part of the 2013 Project approval process, the Town Council
added conditions that would be required of the project sponsor. The Town Council would
not be able to similarly condition the Specific Plan. However, the Specific Plan effectively
incorporates the conditions of approval required of the 2013 Project.
The Specific Plan would also include the payment of similar fees as the 2013 Project (see Table 1,
Fees), including a Traffic Impact Mitigation Fee of $149,280, a payment to construct the Lark
Avenue and University Avenue traffic signal of $184,089.52, school impact fees established by the
Los Gatos Union School District and Los Gatos - Saratoga Union High School District, and a
Community Benefit Payment of $1 per square foot of office and R &D space, or $485,000. The
Community Benefit Payment would not include square footage associated with the elevated
walkways.
PM.amn 1� Rm Ww ewe, R "n e2e14 mm 6114) 14
LSA ASSOCIATES, INC. REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
FEBRUARY 9010
INITIATIVE PROCESS
The Notice of Intent to circulate the Initiative was filed with the Interim Clerk Administrator (the
Town Election Official) on October 23, 2013. The Town Attorney then identified an official ballot
title and prepared a summary of the Initiative for use by the Initiative's proponents for publication
and circulation of the Initiative.
On December 11, 2013, the proponents of the Initiative filed with the Town Election Official a
petition containing 4,113 signatures. The petition and signatures were then forwarded to the Santa
Clara County Registrar of Voters Office for signature verification. On January 22, 2014, the Registrar
of Voters Office notified the Town that the petition contained at least 3,020 valid signatures, more
than 15 percent of the registered voters in the Town. The Town Council accepted the Town Clerk
Administrator's certification of the sufficiency of the Initiative petition on February 3, 2014, which
indicated that the petition meets the 15 percent valid signature requirement needed to place the
Initiative on a special election ballot.
State Elections Code Section 9214 requires the Town Council to either order a special election at
which the voters would consider the Initiative or adopt the Initiative, without alteration, at its regular
meeting at which the certification is presented, or within 10 days after it is presented. On February 3,
2014, the Town Council ordered the preparation of this report pursuant to State Elections Code
Section 9212. At that meeting, the Town Council also identified questions about the effects of the
Initiative.
RESPONSES TO FEBRUARY 3, 2014 TOWN COUNCIL QUESTIONS
The following section provides responses to the Town Council questions identified at their meeting
on February 3, 2014.
Fiscal Impacts
1. How does the proposed Initiative impact the dollar amount required to be paid to the Town as a
Community Benefit per the Council- approved action? In particular, does the Initiative's exclusion
ofsquare footage contained in the proposed "sky bridges" result in a decreased Community
Benefit payment?
The Community Benefit paid by the project sponsor under either the 2013 Project or Specific Plan
would be $1 per square foot of new office and R &D space, or $485,000. Per the Specific Plan,
elevated walkways, or bridges between buildings ( "sky bridges "), and other space not considered as
"usable interior space" (e.g., the parking garage) would not be counted as office and R &D space, and
would not be used to calculate the Community Benefit. Therefore, the exclusion of the potential sky
bridges from calculations of office and R &D space would not result in a decreased Community Benefit
payment relative to the fee that would have been paid as part of the 2013 Project. The Specific Plan,
which would be adopted as part of the Initiative, does not indicate the likely square footage of
potential elevated walkways or bridges (the project sponsor has estimated the likely square footage of
potential elevated walkways at approximately 2,900 square feet). Therefore, the fee generated by such
building space (if considered office and R &D space that would be used to calculate the Community
Benefit fee) cannot be precisely ascertained, but could amount to about $2,900. However, it should be
noted that the Community Benefit fee is a voluntary payment made by a project sponsor.
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LBA ASSOCIATES. INC.
FEBRUARY 8011
Internal Consistency with Town's General Plan
REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
1. What changes does the Initiative propose to the Town's: a) General Plan; b) Specific Plan; and c)
Zoning Ordinance?
The Initiative would result in the following changes to the Town's planning documents. To identify
the changes, added text is shown in underline and deleted text is shown in strikethreugh.
General Plan
A new General Plan designation, the "Albright Specific Plan" designation would be created, which
would only be applied to the project site. This new designation would thus replace the designation
that currently guides land use on the project site (Light Industrial). Specific changes to the General
Plan are summarized below.
• Figure LU -3, 2020 General Plan Land Use (page LU -12), would be amended to change the
land use designation of the project site from Light Industrial to Albright Specific Plan.
• The General Plan Land Use Map would be amended to change the land use designation of
the project site from Light Industrial to Albright Specific Plan.
• The text on page LU -14 of the General Plan would be amended as follows:
2. Non - Residential Land Use Designations
For non - residential land uses, the specific uses mentioned are illustrative, and other
compatible uses, including those authorized in any other Zoning District within the Town,
may be permitted where authorized by a Planned Development Overlay Zone or Specific
Plan. For non - residential land uses, building intensity limits are indicated by either
allowable land coverage or floor area ratio (FAR) and a maximum height limit.
• The following text would be added to page LU -16 of the General Plan
i. Open Space
The Open Space designation identifies the location of public parks, open space preserves,
private preserves, and stream corridors.
i. Albright Specific Plan
Up to 50 percent land coverage with the 50 -foot height limit in Zone 1 and a 65 -foot height
limit in Zone 2, as those zones are shown in Figure 3 -5 of the Albright Specific Plan
(Exhibit D to the Initiative to Amend the Los Gatos General Plan and Zoning Code and
Adopt a Specific Plan for Development of 90 -160 Albright Way and 14600 Winchester
Boulevard).
The Albright Specific Plan designation permits office and research and development uses,
along with office - serving uses. These office and research and development uses include
corporate, administrative, business, and professional offices, as well as light manufacturing,
lit assembly, research and development, wholesaling, warehousing, and other light
industrial uses. Office- serving uses include uses designed to serve those employed at the
site or visiting the site for other business purposes. Projects developed under this
designation must be consistent with the Albright Specific Plan.
P%nc1401 im Gems lmu breVRODUCTSWUnlw So— Gww Report 2-N,14 .mnvH' 16
LBA ASSOCIATES, INC.
FEBRUARY 2014
REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
• The text on page LU -16 of the General Plan would be amended as follows:
F. Special Planning Areas
Development in Los Gatos can be targeted to achieve a more specific outcome by
designating specific overlay zones and special planning areas. These areas have more
detailed development guidelines that remain consistent with existing policies. Los Gatos
has three overlay zones that implement land use policies through the Town Code, five
Historic Districts, three -four Specific Plans, and one Redevelopment Project Area.
• The text on page LU -19 of the General Plan would be amended as follows:
4. Other Plans
The Albright Specific Plan, Hillside Specific Plan and Los Gatos Boulevard Plan areas are
each developed according to separate land use goals and in different areas of the Town. In
addition to these approved Specific Plans, the Town will be developing a North Forty
Specific Plan.
The following text would be added to page LU -21 of the General Plan:
c. Central Los Gatos Redevelopment Project
The Central Los Gatos Redevelopment Project, which focuses on an area located around
Downtown Los Gatos, contains a mix of residential and nonresidential land use designa-
tions. The Town of Los Gatos Redevelopment Agency has the authority to facilitate
property acquisition and management, construction of public improvements, structural
rehabilitation, and site assembly within the Project Area. The project was adopted in 1991,
following the 1989 Loma Prieta earthquake. The main objectives of the project are to
eliminate blight, assemble land parcels for improved development, strengthen the economic
base of downtown, and improve undeveloped and underutilized areas.
d. Albright Specific Plan
The Albright Specific Plan establishes the policies and development standards for the area
bounded by State Route 85, Winchester Boulevard, the Los Gatos Creek Trail, and
residential development. The Specific Plan's goals and policies address the area's unique
location near maior transit corridors as well as residential and recreational uses. The
SSvecific Plan also establishes height limits, maximum coverage, permitted uses, and other
zoning regulations for the area to which it applies.
Specific Plan
The Initiative would not change the Town's existing Specific Plan (Hillside Specific Plan), but would
result in the approval of a new Specific Plan (the Albright Specific Plan) that would govern land use
within the project site, per the Initiative.
1 Note that the reference to "three Specific Plans" in the existing General Plan is in error, as there is currently only
one adopted Specific Plan in the Town (Hillside Specific Plan).
P1710101 17
Len ASSOCIATES. INC.
FEBRUARY 2014
Zoning Ordinance
REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
• The Zoning Map of the Zoning Code (Chapter 29 of the Code of the Town of Los Gatos)
would be amended to change the zone of the project site from CM:PD (Controlled
Manufacturing, Planned Development) to Albright Specific Plan.
2. How are the Town's other land use policies and directives affected by the proposed Initiative —
would they apply to the project (e.g., Tree Ordinance)?
The Initiative would be subject to the ordinances in Town Code, except those in the Zoning
Ordinance that conflict with the Specific Plan (in which case the provisions in the Specific Plan that
conflict with provisions in the Zoning Ordinance would replace those conflicting provisions). Thus
the Specific Plan would be subject to the provisions of the Tree Ordinance. However, the Initiative
could affect the Town's abilities to implement its other land use policies and directives in the
following three ways:
1. If the Initiative and one or more alternate ballot measure regulating the uses of the project
site are both approved by voters, the ballot measure receiving the most affirmative votes
would guide development on the project site.
2. If the Initiative is approved and one or more sections of the Initiative is deemed invalid
by a Court, the Initiative directs the Town Council to "use its best effort to sustain and re-
enact" the sections deemed invalid and also take "all steps possible to cure any inadequa-
cies or deficiencies identified by the court in a manner consistent with the express and
implied intent" of the Initiative.
3. The Town would not be permitted to adopt land use policies (e.g., General Plan or
Zoning Ordinance amendments) that would conflict with the Initiative until June 3, 2021,
when the Planning Commission and Town Council would have the authority to make
changes to the Initiative and accompanying Specific Plan.
3. Under what circumstances would any change in the project return it to the Planning Commission
or Town Council for review? The initiative refers to material and minor changes; how would
each of these be treated?
Prior to June 3, 2021, the Specific Plan may be amended only by ballot initiative approved by Town
voters. On or after June 3, 2021, the Specific Plan may be amended without a ballot initiative by the
Planning Commission and Town Council. Amendments to the Specific Plan would be required, for
instance, to introduce retail or residential uses to the site.
The Initiative allows for certain deviations between development proposed for the site and the
Specific Plan. If the Community Development Director finds that proposed development is not
substantially consistent with the provisions of Chapter 4 (Design Guidelines), Chapter 5 (Circulation
and Streetscape), Chapter 6 (Infrastructure and Public Services and Facilities), and/or Chapter 7
(Natural Resources), amendments to the proposed development plan would be processed pursuant to
the A &S review and approval process set forth in Article Ii, Division 3 of the Town Zoning
Ordinance (Approvals). This process would not require a Specific Plan amendment, but would
involve the Planning Commission and Town Council as decision - making bodies, as described below.
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LOA ASSOCIATES. INC. REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
FEBRUARY 9014
Pursuant to Section 29.20.750 of the Zoning Ordinance, the Planning Commission determines
applications for A &S approval except for those listed for the Development Review Committee in
Section 29.20.745. Those actions that would be initially referred to the Development Review
Committee include review of generally minor elements of an A &S application, including the
determination of appropriate screening, storage of hazardous materials, and minor alterations to
commercial buildings. More significant changes, including changes to circulation and the location of
buildings, would be referred to the Planning Commission. Appeals to the Development Review
Committee's decisions would be heard by the Planning Commission. Appeals to the Planning
Commission's decisions would be heard by the Town Council.
A &S review and approval would be required if there are changes in the site plan and building
elevations that would materially alter the approved architectural style or increase the area coverage or
the height of buildings. As part of the A &S review and approval process, the proposed development
would be required to be reviewed for compliance with the Town's Common Design Guidelines of the
Commercial Design Guidelines.
In summary, here is how major, significant, and minor changes between proposed development and
the Specific Plan would be treated (see also Table 1):
• Major Changes. Major changes, such as the introduction of residential uses to the site,
could be approved prior to 2021 only by Town voters.
• Significant Changes. Significant changes, such as increases in building height and a
reduction in the acreage of open space provided on the site, could be approved by the
Planning Commission, with appeals to the Town Council.
• Minor Changes. Minor changes, such as the relocation of ancillary uses or the substitution
of plant species, could be approved by Town Staff (under the supervision of the
Community Development Director).
4. How does the proposed initiative affect the Town Council and Planning Commission's ability to
make changes to, or restrict changes to the General Plan?
The Initiative would prohibit the Planning Commission and Town Council from making changes to
the General Plan amendments effected by the Initiative, in addition to other provisions of the
Initiative, including the Specific Plan. These General Plan amendments and other provisions of the
Initiative and Specific Plan can be modified only by Town voters prior to June 3, 2021. On or after
June 3, 2021, the Planning Commission and Town Council would have the authority to make changes
to the General Plan amendments required by the Initiative, or other provisions of the Initiative and
accompanying Specific Plan. However, once substantial construction is underway, the project sponsor
has property rights (vesting) to proceed with the project regardless of subsequent changes to the
original approval.
5. The Town may only make four changes per year to its General Plan. Would the General Plan
change proposed by the Initiative count as one of those changes, thereby limiting the Town's
discretion to amend the General Plan?
Yes, the General Plan amendments required as part of the Initiative would count as one of the four
amendments to the General Plan per Element permitted by State law per calendar year. If the four
PMCiOI Lw Ga Ivtimi eWRDIXICTSWuFIi R—MLo, Omo, Rep E -3614) (4n&[41 19
LEA ASSOCIATES. INC. REPORT ON THE ALBRIOHT SPECIFIC PLAN INITIATIVE
FEBRUARY 9014
amendments to the General Plan per Element have already been utilized in the year in which the
Initiative becomes effective, the General Plan amendments would be required to occur on January 1
of the next year (and would comprise one of the four permitted amendments to the General Plan
allowed under State law that year).
In addition, if the Town adopts General Plan amendments between the Initiative filing date (i.e., the
Notice of Intent to Circulate the Initiative) and the date the General Plan is amended in accordance
with the Initiative, and the former amendments are inconsistent with the amendments required by the
Initiative, the Town would be required to undertake further amendments to ensure the General Plan is
consistent with the amendments required by the Initiative.
Staff reports that there are not more than four General Plan amendments for any single Element
anticipated in 2014, including the amendments required as part of the Initiative. Other General Plan
amendments may include those related to the Twin Oaks, North 40 Specific Plan, and Courthouse
Property applications that are currently being reviewed. Should another General Plan amendment be
filed, exceeding the limit on General Plan amendments allowed under State law, then the Town
Council could not take action on that additional General Plan amendment until the following year.
Impact on Funding for Infrastructure
I. What is the amount ofproperty tax the project will contribute directly to Los Gatos and the Los
Gatos school system, a) assuming the project as approved by the Council; and b) assuming the
project as proposed by the Initiative?
The 2013 Project and Specific Plan are similar in terms of total number of buildings, type of land use,
overall square footage of office and R &D space, parking, roads /infrastructure, and open space.
Therefore, the property tae generated by each project would likely be similar.
However, the specific amount of property tax that the Specific Plan would generate is difficult to
ascertain because of the conceptual nature of the development proposed in the Specific Plan. Property
taxes are based on the assessed value of land and on -site improvements, and the value of business
property such as office furniture and equipment. The Specific Plan establishes a conceptual develop-
ment envelope for construction of new buildings and other facilities on the project site, but does not
contain detailed building and furnishing diagrams that can be used to develop an estimated assessed
value.
The Fiscal Impact Analysis prepared by the project sponsor for the 2013 Project was based on a
development containing 550,000 square feet of office and R &D space. Based on the existing assessed
value of the project site ($55,621,689) and the estimated assessed value of the project ($328,430,000),
that 550,000 -square -foot project would generate approximately $253,712 in annual property taxes for
the Town (not including property tax generated in -lieu of the Vehicle License Fee) and $1,444,793 in
annual property tax- related revenues for the Los Gatos Union Elementary School District and Los
Gatos - Saratoga Joint Union High School District. Assuming a proportional relationship between
property taxes and the square footage of office and R &D space that would be developed on the site as
part of the Specific Plan, a rough estimate of the property taxes generated by a project containing
485,000 square feet of office and R &D space would be approximately $223,267 for the Town and
$1,271,418 for the school districts.
PHLON01 Loa G-1 IwW11wTR0D11CIVNb1k Raiv wG,to RlP 2-1614tl (0Y 114) 20
LEA ASSOCIATES, INC. REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
PEBRUARV 3010
Factors that could increase or decrease the property taxes generated by the 2013 Project and Specific
Plan compared to the revenue identified above would include features or qualities that would affect
the total assessed value of the project, including: quality of construction; accessory square footage
added to the base 485,000 square feet of office and R &D space (including elevated walkways
between buildings); the value of interior equipment and furnishings; and the quality of open space and
landscaping. As noted above, because the Specific Plan provides conceptual development plans and
policies for site development, it is not possible to assign a precise assessed value to the likely
development at this time.
Both the 2013 Project and the Specific Plan provide development plans that do not allow final
determinations for property and other taxes due to the potential variation in building cost, quality of
materials, value of interior equipment and furniture, and landscaping. However, given the physical
similarities of the two projects, anticipated property and other tax revenue would likely be the same.
2. What is the amount of the SB 50 contribution to local schools, a) assuming the project as
approved by the Council; and b) assuming the project as proposed by the Initiative?
The school impact fees generated by the Specific Plan would be similar to those required of the 2013
Project (about $247,350, which could increase slightly if elevated walkways are constructed). The
method for calculating the school impact fees is described below.
The project site is located in the Los Gatos Union Elementary School District and the Los Gatos -
Saratoga Joint Union High School District. Los Gatos Union Elementary School District collects
school impact fees for both Districts. Current development fees are $0.51 per square foot of
commercial space, and fees are not levied on garages, storage areas, and unfinished basements.
Based on available information, it appears that the development fee would be imposed on elevated
walkways between buildings. The school impact fee for the 2013 Project was estimated at $247,350.
The Initiative requires that, upon issuance of a building permit, the sponsor of development in the
Specific Plan area pay school impact fees to the Los Gatos Union High School District and the Los
Gatos Saratoga Union High School District, in accordance with State Law (i.e., Senate Bill 50). This
condition is the same as that associated with the 2013 Project.
Assuming construction of 485,000 square feet of commercial space, the school impact fee for the
project allowed under the Initiative would also be $247,350. Assuming that elevated walkways
between buildings are also subject to the school impact fee, implementation of the Specific Plan could
generate more than $247,350 in school impact fees. Because the Specific Plan does not identify the
specific square footage of elevated walkway space that could be developed on the site, the amount of
additional school impact fees that would be generated by the elevated walkways cannot be precisely
calculated. The project sponsor indicated that 2,900 square feet of elevated walkways could be
developed on the site. Based on that square footage, the elevated walkways would generate
approximately $1,479 in additional school impact fees, beyond the $247,350 generated by the
485,000 square feet of commercial space.
'Los Gatos Union School District, 2014. Developer Impact Fees. Website: www.leusd.kl2.ca.us /facilities/
develoverfees.htm.
P\nc14M Las aao.Imtia eWRODt1CTSVNN4 ReviMLw cam: Rom 3 -2614 to, 02G&JO 21
LSA ASSOCIATES. INC. REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
FEBRUARY 1011
3. How will the Initiative affect the amount required to be paid to the Town as "Traffic Impact
Fees? "How might this be affected if the Town Council were to raise traffic impact fees? Would
the Council be able to apply any increased Traffic Impact Fees to the project?
The Traffic Impact Fee for the 2013 Project and the project allowed under the Initiative would be
identical: $149,280. The fee under both projects would be assessed at the time permits are issued for
individual buildings. Thus both projects would be subject to fee increases approved by the Town
Council, assuming the increase in fees occurs prior to the issuance of a building permit.
4. What impact will the project have on costs to the Town for maintenance of infrastructure, a)
assuming the project as approved by Council; and b) assuming the project as proposed by the
Initiative?
The project that would be implemented as part of the Initiative would not increase the costs to the
Town for the maintenance of infrastructure compared to the 2013 Project. Under the 2013 project, the
project sponsor would be responsible for the maintenance of infrastructure and open space on the
project site, all of which would be privately - owned. Performance Standard 115, adopted as part of the
2013 Project, requires the project sponsor "to supply suitable securities for all public improvements,
and private circulation and drainage infrastructure improvements that are part of the development in
form acceptable to the Town in the amount of 100 percent (performance) and 100 percent (labor and
material) prior to issuance of any permit for each development phase." This same requirement is
included on page 8 -9 of the Specific Plan. As part of the Specific Plan, the project sponsor would be
financially responsible for all on -site infrastructure and open space and certain off -site improvements
(e.g., the inspection of public street lighting adjacent to the project site and signal synchronization
along Winchester Boulevard).
5. Does the Initiative as proposed limit payments to the Town for construction, improvement,
maintenance and /or repair of Town infrastructure?
The Initiative would not limit payments to the Town for the construction, improvement, maintenance,
and/or repair of Town infrastructure and would allow for the payment of development fees as
required by the Town, including school impact fees, traffic mitigation fees, a water efficiency fee,
plan check fees, inspection fees, fees for the inspection of public street lighting and traffic signal-
related work, traffic signal fees, and public and private development securities. In addition, the
sponsor would make a Community Benefit Payment of $485,000, for use by the Town in developing
or maintaining infrastructure, or other activities.
Impact on Attraction and Retention of Business and Employment
1. Will the initiative increase or decrease NetJlix employment?
Based on the physical characteristics of the project, the amount of employment on the site would be
the same under the 2013 Project and the Specific Plan: 1,601 employees, as estimated by the project
sponsor.
Based on the Fiscal Impact Analysis prepared by the project sponsor, the employment associated with
the 2013 Project (1,601 employees, or a net increase of 776 employees beyond the existing site
capacity of 825 employees) was calculated based on an average employee density of 1 employee /303
P \TLOI401", Gaw lm c4 TROOl�Ws he rse.iew tos Report z -N.Idm 10v 14) 22
LSA ASSOCIATES, INC. REPORT ON THE ALBRIOHT SPECIFIC PLAN INITIATIVE
FEBRUARY 204
square feet of new office and R &D space. With 485,000 square feet of office and R &D space (the
same amount of office and R &D space as the 2013 project), the current project would also accommo-
date approximately 1,601 employees. The office and R &D space that would be developed as part of
the Initiative would not include elevated walkways between buildings. As described and illustrated in
the Specific Plan (see "Example of elevated pedestrian walkways" on page 4 -9 of the Specific Plan),
the elevated walkways would not contain office space for employees and would not be expected to
independently increase Netflix employment.
To the extent that approval of the Initiative creates attractive conditions for Netflix's growth, the
Initiative could ostensibly result in a long -term increase in employees on the site (if Netflix increases
the number of employees that occupy the site or seeks additional development beyond that permitted
under the Specific Plan). However, such growth would be speculative based on the information
available in the Initiative, Specific Plan and associated publicly - available documents.
2. Will the initiative affect the amount ofsales tax collectedfrom Netflix?
According to the Fiscal Impact Analysis prepared for the 2013 Project by the project sponsor,
employees from the project site that spend money locally would generate sales tax revenue for the
Town. The estimated amount of sales tax revenue was based on the number of employees that would
occupy the project site. Each employee was estimated to spend $3,328 on taxable expenditures, about
half of which would be spent within the Town. The Town would capture 1 percent of taxable sales in
the form of sales tax, or a total of approximately $26,641 for 1,601 employees.' Because the project
implemented as part of the Initiative would also accommodate 1,601 employees, the amount of
estimated tax revenue generated would be the same as would be generated by the 2013 Project.
In addition, the sales tax the Town receives from DVD rentals would be a function of Netflix's
operational decisions, and not development of the 2013 Project or Specific Plan.
3. not is the state of the Netflix lease? How long is Netflix committed to Los Gatos and when was
the lease signed?
The lease between Netflix and the project sponsor is a private contract that has not yet been provided
to Town Staff. However, the project sponsor has voluntarily provided information about the lease to
the Town Manager, and this information is the basis for the following response. According to the
correspondence between the project sponsor and Town Manager, the executed leases with Netflix
have initial terms of 10 years each, with the potential for extension by another 10 years. The project
sponsor is currently undertaking building demolition and grading activities on the site and expects
that Buildings 1 and 2 would be complete in 2015. Buildings 3 and 4 would be built when Netflix
moves out of its existing buildings and into Buildings 1 and 2. Netflix also has a right to occupy
Buildings 3 and 4. The lease also gives Netflix the ability to request elevated walkways between the
buildings, and Netflix has requested an elevated walkway between Buildings 1 and 2 (comprising
approximately 885 feet). The project sponsor indicates that if three elevated walkways are built, they
would comprise a total of approximately 2,900 square feet.
' Economic & Planning Systems, Inc., 2013. Albright Project Fiscal Impact Analysis. April 24.
Pincuui io. cmo,we.w.wao��crswmu, w,xwLo, cmo, Repro x -xfi-la m, mveWim 23
LSA ASSOCIATES, INC. REPORT ON THE ALBRICHT SPECIFIC PLAN INITIATIVE
FEBRUARY 1014
Impact on Open Space, Traffic Congestion
1. How does the increase in lot coverage in the project as proposed in the Initiative, as opposed to
the Council- approved project, affect open space both within the project and as it relates to
surrounding properties and open space, in particular, the Los Gatos Creek Trail?
The combined footprint of proposed buildings would be approximately 5.1 acres under the 2013
Project and the Specific Plan. In addition, each project would provide approximately 8.1 acres of
private open space. The project site does not contain any publicly - accessible open space, although it
is bordered on the east by the Los Gatos Creek Trail and associated public open space. In the vicinity
of the project site, the trail is currently accessed primarily along Charter Oaks Drive, adjacent to the
southeastern corner of the project site. The existing private trail access point at the Charter Oaks
Drive cul -de -sac would be maintained as part of the Initiative.
2. Will the potential limitation ofpayment of traffic fees to the Town, as contained in the proposed
Initiative, impact traffic congestion in the project area? Will it affect open space?
As described above, the Traffic Impact Fee for the 2013 Project and the project allowed under the
Initiative would be approximately identical: $149,280. The fee under both projects, which would be
based on the square footage of enclosed space developed as part of the project, would be assessed at
the time permits are issued for individual buildings.
The primary objective of the Town's Traffic Impact Policy (and associated Traffic Impact Fee) is to
allow for the construction of transportation improvements that reduce a project's contribution to
traffic congestion. As defined in the Specific Plan, the elevated walkways that could be developed as
part of the current project would be unoccupied and would not generate additional vehicle traffic
beyond the traffic generated by the employees associated with the 485,000 square feet of occupied
commercial and R &D space. Therefore, any exemption of the elevated walkways from assessment of
the Traffic Impact Fee would not affect traffic congestion in the vicinity of the project site.
The Site Plan included as Figure 4 -1 of the Specific Plan indicates that the project developed under
the Initiative would include 8.1 acres of open space — the same amount of open space that would be
developed under the 2013 Project. In addition, Figure 4 -1 indicates that the open space proposed as
part of the current project would be developed in approximately the same configuration as the 2013
Project. Similar to the 2013 Project, the project that would be developed as part of the Initiative
would be required to be designed in accordance with the Santa Clara Valley Water District Guidelines
and Standards for Land Use Near Streams, which would ensure minimum building setbacks adjacent
to Los Gatos Creek, and other measures to protect the riparian corridor. Furthermore, the existing
private trail access point at the Charter Oaks Drive cul- de-sac would be maintained as part of the
Initiative, per Section 3.6.2, Open Space Standards, of the Specific Plan. Therefore, the Initiative
would not result in substantial changes to the provision of open space on or adjacent to the project
site.
P,nGIF1I 24
LSA ASSOCIATES, INC.
FEBRUARY 1014
Other Items
REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
1. What is the legality ofdoing this type of initiative that may change the authority ofthe Council
for a period of 7 years?
The California courts have been very protective of citizens' rights to craft and approve ballot
measures. The courts have imposed limits on the use of ballot measures to enact land use planning,
but these limitations are relatively few in number, and are summarized below:
• The content of an initiative ordinance may not violate the State Constitution or U.S.
Constitution (e.g., Constitutional provisions related to the due process or equal protection
rights of affected property owners);
• The initiative must be consistent with the General Plan, and must not result in internal
inconsistencies within the General Plan.
• The initiative power applies only to legislative acts (e.g., adoption of or amendments to
General Plans, Specific Plans, and Zoning Ordinances);
• The initiative must not impair an essential government function, such as the ability of a
government to locate a courthouse; and
• The initiative must not conflict with State law.4
The Initiative, by restricting the Town Council from amending the Specific Plan until 2021, would
not violate any of the limitations on ballot measures listed above. Therefore, the Initiative's provision
related to amending the General Plan is presumed to be legal.
2. Are there any other substantive differences between the 2013 Project and the Specific Plan,
including in regard to biological and cultural resources, and materials recycling?
The conditions of approval for the 2013 Project include the mitigation measures identified in the Final
EIR, including measures related to the protection of nesting special- status and migratory birds,
roosting bats, Los Gatos Creek, and previously unidentified archaeological materials, fossils, and
human remains. These measures are all incorporated into the Specific Plan, most verbatim or nearly
verbatim. The Specific Plan substantively incorporates the mitigation measures identified in the Final
EIR for the 2013 Project.
In regard to the recycling of building materials, the 2013 Project was conditioned as follows:
RECYCLING: Prior to the issuance of a demolition permit, the developer shall provide the
Community Development Director with written notice of the company that will be recycling
the building materials. All wood, metal, glass, and aluminum materials generated from the
demolished structure shall be deposited to a company that will recycle the materials. Receipts
from the company(s) accepting these materials, noting type and weight of material, shall be
submitted to the Town prior to the Town's demolition inspection.
d Curtin Jr., Daniel J., and M. Thomas Jacobson, 1991. Growth Control by the Ballot Box: California's Experience.
June 1.
P U101401 Los Oho, 1mbes COIICrST&hc Revle*Lw GOO, Report 2-W14 doe l4: M 25
LSA ASSOCIATES, INC,
FEBRUARY 2010
REPORT ON THE ALBRIGHT SPECIFIC PLAN INITIATIVE
This condition is included verbatim in Section 4.5.2 of the Specific Plan.
REPORT PREPARERS AND REVIEWERS
This report was prepared primarily by LSA Associates, Inc., with assistance from Town Staff. The
primary report preparers and reviewers are listed below.
LSA Associates, Inc.
2215 Fifth Street
Berkeley, CA 94710
Judith Malamut, AICP, Managing Principal
Adam Weinstein, AICP, Associate
Town of Los Gatos
110 East Main Street
Los Gatos, CA 95030
Greg Larson, Town Manager
Pamela Jacobs, Assistant Town Manager
Robert Schultz, Town Attorney
Sandy Baily, AICP, Community Development Director
Joel Paulson, AICP, Planning Manager
Neither LSA nor Town Staff had any communications with the project sponsor or the sponsor's
representatives regarding the preparation or review of this report, except for the request and
submission of Netflix lease terms, as directed by the Town Council.
P %TIO101 Lw Omus Revi 1901w Rry 2 -26144 10Mf101 26
RESOLUTION 2014 -002
RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
CALLING AND GIVING NOTICE OF ASPECIAL MUNICIPAL ELECTION
TO BE HELD JUNE 3, 2014 FOR THE SUBMISSION TO THE VOTERS OF AN
INITIATIVE AMENDING THE GENERAL PLAN AND ZONING CODE
AND ADOPTING A SPECIFIC PLAN FOR DEVELOPMENT OF
90 -160 ALBRIGHT WAY AND 14600 WINCHESTER BOULEVARD
WHEREAS, On October 23, 2013, a Notice of Intent to Circulate a Petition titled "Amend
the Los Gatos General Plan and Zoning Code and Adopt a Specific Plan for Development of 90-
160 Albright Way and 14600 Winchester Boulevard" (the "Initiative ") was filed with the Town's
Elections Official with a request that a title and summary be prepared for the measure; and
WHEREAS, the Town Attorney provided a title and summary for the proposed Initiative to
the proponents; and
WHEREAS, the petitions regarding the Initiative were filed with the Elections Official on
December 11, 2013, bearing unverified signatures; and
WHEREAS, to qualify for the June 3, 2014, ballot, proponents were required to obtain
signatures of fifteen percent (15 %) of the registered voters of the Town and to include a request for
a special election in their petition and the petition included that request; and
WHEREAS, the Clerk Administrator and Town Attorney have found that the petition's
form complies with the Elections Code; and
WHEREAS, the County Elections Division has examined the records of voter
registration and has certified that the Petition is signed by the requisite number of voters to
qualify for a special election; and
WHEREAS, the Town Council wishes to consolidate the Special Municipal Election with
the Statewide Primary Election to be held June 3, 2014, and that the precincts, polling places and
elections officers of the two elections be the same within the Town; and that the Santa Clara
County Elections Department canvass the returns of the Special Municipal Election; and that the
elections be held in all respects as if one election.
NOW, THEREFORE, BE IT RESOLVED THAT the Town Council of the Town of Los
Gatos does Declare, Determine and Order as Follows:
SECTION 1. Pursuant to the laws of the State of California relating to general law cities, there is
called and ordered to be held in the Town of Los Gatos, California, on Tuesday, June 3, 2014, a
Special Municipal Election.
ATTACHMENT 2
SECTION 2: Pursuant to Elections Code § 9214, subdivision (b) and § 1405, subdivision (a)(1), the
Town Council hereby orders the Initiative to be placed on the ballot without alteration and does
order the following question submitted to the voters at the Special Municipal Election:
Shall the Town's General Plan, General Plan
Land Use Map, and Zoning Code and Map be YES
amended and shall the Albright Specific Plan be
adopted to provide land use rules for
approximately 21.6 acres of land at 90-160
Albright Way and 14600 Winchester Boulevard. NO
SECTION 3. The text of the ballot measure, without its exhibits, is attached to this resolution as
Exhibit A. The text of the measure, without its exhibits, shall be printed in the ballot materials;
copies of the exhibits to the measure shall be available for public inspection in the Clerk
Administrator's office and on the Town's website at www. losgatosca .gov /AlbrightWayInitiative.
SECTION 4. The Town Council directs the Clerk Administrator to transmit a copy of the measure
to the Town Attorney, and directs the Town Attorney to prepare an impartial analysis of the
measure pursuant to Elections Code § 9280.
SECTION 5. The initiative measure shall pass only if a majority of the votes cast by voters voting
on the measure are "yes" votes.
SECTION 6. Pursuant to § 10403 of the Elections Code, the Board of Supervisors of the County of
Santa Clara is hereby requested to consent and agree to the consolidation of a Special Municipal
Election with the Statewide Primary Election on Tuesday, June 3, 2014.
SECTION 7. The County Elections Department is authorized to canvass the returns of the Special
Municipal Election. The election shall be held in all respects as if there were only one election and
only one form of ballot shall be used.
SECTION 8. The Board of Supervisors is requested to issue instructions to the County Elections
Department to take any and all steps necessary for the holding of the consolidated election.
SECTION 9. The Town of Los Gatos recognizes that the additional costs will be incurred by the
County by reason of the consolidation of the two elections and agrees to reimburse the County for
its costs to do so.
SECTION 10. The Clerk Administrator is hereby directed to file a certified copy of this Resolution
with the Board of Supervisors and the County Election Department of the County of Santa Clara.
SECTION 11. The ballots to be used at the election shall be in form and content as required by law.
SECTION 12. The Clerk Administrator is authorized, instructed and directed to procure and
famish any and all official ballots, notices and printed matter and all supplies, equipment and
paraphernalia that may be necessary to properly and lawfully conduct the election and to take all
other necessary actions to place the measure on the June 3, 2014, ballot.
SECTION 13. In all particulars not recited in this resolution, the election shall be held and
conducted as provided by law for holding municipal elections.
SECTION 14. The notice of the time and place of holding the election is given and the Clerk
Administrator and County Elections Department are authorized, instructed and directed to give
further or additional notice of the election, in time, form and manner as required by law.
SECTION 15. The Council finds that this is not a project under the California Environmental
Quality Act by virtue of the State CEQA Guidelines, 14 Code of California Regulations § 15378,
subdivision (b)(3) and, therefore, no environmental impact assessment is necessary.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los
Gatos, California, held on the 31a day of March, 2014, by the following vote:
COUNCIL MEMBERS:
AYES: Marcia Jensen, Joe Pirzynski, Diane McNutt, Mayor Steven Leonardis
NAYS:
ABSENT: Barbara Spector
ABSTAIN:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
THIS PAGE
INTENTIONALLY
LEFT BLANK
From: Council
Subject: FW: Albright Report
From: John Shepardson [mailto:shepardsonlaw(alme.comJ
Sent: Tuesday, February 04, 2014 12:46 AM
To: Steven Leonardis; Marcia Jensen; Diane McNutt; Joe Pirzynski; BSpector; Council; Greg Larson
Subject: Albright Report
Dear Mr. Mayor and Council Members:
Thank you for voting for a report on the Albright Ballot Initiative, and I hope Ms. Spector is feeling
better.
I wish to commend Staff for responding to emails for entry into the record as Desk items.
John
JOHN A. SHEPARDSON, ESQ.
59 N. Santa Cruz Avenue, Suite Q
Los Gatos, CA 95030
T: (408) 395 -3701
F: (408) 395 -0112
CONFIDENTIALITY NOTICE: the information contained in this e-mail, including any attachment(s), is
confidential information that may be privileged and exempt from disclosure under applicable law. If
the reader of this message is not the intended recipient, or if you received this message in error, then
any direct or indirect disclosure, distribution or copying of this message is strictly prohibited. If you
have received this message in error, please notify Marti H. Castillo at the Law Office of JOHN A.
SHEPARDSON immediately by calling (408) 395 -3701 and by sending a return e-mail; delete this
message; and destroy all copies, including attachments. Thank you.
IRS CIRCULAR 230 DISCLOSURE
To ensure compliance with new requirements of the Internal Revenue Service, we inform you that, to
the extent any advice relating to a Federal tax issue is contained in this communication, including in
any attachments, it was not written or intended to be used, and cannot be used, for the purpose of (a)
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matter addressed in this communication.
111 ATTACHMENT
From: Council
Subject: FW: Albright Ballot Report (Possible inclusions)
From: John Shepardson [mailto:shepardsonlawColme.com]
Sent: Wednesday, February 05, 2014 3:21 PM
To: Steven Leonardis; Marcia Jensen; Diane McNutt; Joe Pircynski; BSpector; Council; Greg Larson
Subject: Albright Ballot Report (Possible inclusions)
Dear Mr. Mayor, Town Council and Town Manager:
Please include the following in your report: value of easements, traffic in SJ
worsening from 13th to 5th, "Google Effect" re employees /1 K square feet, Netflix only 2
buildings, and why others not leased.
I was told by an appraiser that if the easements are worth zero to one party, and FMV to
the other, often the valuation is to the split the difference. By giving them the easement
square footage, this means the Developer paid even closer to $2M per acre, about half of
what I understand was the North 40 price ... clever people, those Carlyle and Pau people.
Value to Developer; Public Deserves to Know. Directing oversight to the CDD I
suspect adds $5M to $15M to the sales price, or more, and perhaps this could explored,
addressed and an appraised value obtained. I think
the public deserves to know what the financial benefit it is to the Developer to disrupt our
traditional land use oversight decisions.
Thank you for your attention to this matter.
John
JOHN A. SHEPARDSON, ESQ.
59 N. Santa Cruz Avenue, Suite Q
Los Gatos, CA 95030
T: (408) 395 -3701
F: (408) 395 -0112
From: Council
Subject: FW: Albright Public Offer
From: John Shepardson fmailto:shepardsonlawCilme.com]
Sent: Thursday, February 13, 2014 5:37 PM
To: Steven Leonardis; Marcia Jensen; Diane McNutt; Joe Pirzynski; BSpector; Council; Greg Larson; Robert Schultz
Cc: Ed Bellezza; Judy Peterson; Sheila Sanchez
Subject: Albright Public Offer
Dear Mr. Mayor, Town Council and Staff:
Last night at the PC meeting the Citizens made a public offer to the Developer of the Albright project.
We offered to drop the lawsuits if the Developer agreed to abide by the Town Council's approval, and
not the terms and conditions of the Ballot measure proposal. The TC approval and the Ballot project are
significantly different.
The Ballot changes the Town's normal governance of the project (nonelected Community Developer Director
given extraordinary power) and adds more construction, while
capping fees based on 485,000 square feet of commercial office space. We believe the suits have merit based
on violation of a 35 -foot rigid maximum height limit. However,
we also believe the threat of the Ballot measure to the short- and long -term well -being of the Town is of greater
importance. Therefore, we are willing to sacrifice our opportunity
for appellate review, if the Developer pulls back from what we perceive to be a dangerous attack on the Town's
Sovereignty to decide how it goes about making land use decisions.
The Developer wants a larger project in form, yet the same fees as approved before, and it wants to
fundamentally change how the project is regulated by the Town in the future.
The Ballot changes the project and the Town's governance. The Community Development Director Sandy
Bailey will become the primary administrator. She will have the sole
discretion to determine if a proposed change is in substantial compliance with the Specific Plan. Her
determination that changes are in substantial compliance will apparently not be
subject to appeal. As such, this will cause an apparent shift in power away from our elected officials, and to
nonelected officials, the Community Development Director and her boss, the Town
Manager.
Liberal and conservatives, pro- and smart-growth advocates, should be equally alarmed by this threat arising
from the tremendous financial resources brought to bear by
THE CARLYLE GROUP (as I understand it 95% owner of Los Gatos Business Park, LLC)to sway voters to
vote for the Ballot measure. THE CARLYLE GROUP's $250,000+ campaign has misled
and/or misinformed many voters about the Ballot measure. It is anticipated it will engage in future campaign
tactics (and at cost of another $1M ?)in their apparent quest to "add value" to the project,
so it can apparently sell off the entitlements for huge profits. If the Ballot passes, CARLYLE will be able to
"sell" the project in part on its cutting out standard Town (and related agency) oversight.
For example, building permits require five agencies to approve them, including the Community Development -
Planning Division: Joel Paulson, Engineering/Parks & Public Works Department,
1 1
Maziar Bozorginia, SCC Fire Department, West Valley Sanitation, Bay Area Air Quality Management District
(see paragraph 65 of the TC Ordinance). Under the Ballot measure as I read it,
only Sandy Bailey need approve a building permit. It appears the Ballot measure provides for
less transparency, less oversight, and increases the risk of abusive land use decisions.
We hope that the Developer takes our offer seriously and accepts it, and the project proceed as approved (Note:
this important point - -there is nothing presently prohibiting the Developer from building the TC
approved buildings).
Perhaps the Developer brought the Ballot measure because it believed there were good grounds the approval
was not lawful and /or it simply wanted to add construction and reduce oversight for monetary reasons. I
understand
the Developer's quest for profits, their prime objective is to make money for its investors. However, when their
profit motive crosses over into altering Town Sovereignty we must vigilant in questing it, and
opposing it, unless somehow warranted, which it is not.
I do look forward to the Town's report to provide clarifying information on the Ballot measure, which is
complex irrespective of the campaign made by the Developer.
Thank you for your attention to this matter
John
JOHN A. SHEPARDSON, ESQ.
59 N. Santa Cruz Avenue, Suite Q
Los Gatos, CA 95030
T: (408) 395 -3701
F: (408) 395 -0112
2
From:
Jeff Whalen <Jeff.Whalen@bridgebank.com>
Sent:
Wednesday, February 19, 2014 4:23 PM
To:
Steven Leonardis; Marcia Jensen; BSpector, Diane McNutt; Joe Pirzynski
Cc:
Attorney, Town Manager
Attachments:
TC letter 2-19-14.pdf
Jeffrey M. Whalen
Senior Vice President, Market Manager
Specialty Markets
Bridge Bank
55 Almaden Blvd. suite 100
San Jose, Ca. 95113
P(408) - 556-8614
C(408) - 839-3878
Be bold, venture wisely."
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0-1
February 19th, 2014
Honorable Mayor Leonardis and members of the Town Council,
Thank you to the three members that voted in favor of further examination of the councils right
to put an alternative TC initiative on the ballot in June to contrast with the developers own Albright way
initiative.
Clearly, last night's presentation by Mr. Pau's legal team proved that they know they have our
elected officials in a box and that their legal strategy is working to their advantage (the $250K to $300K
spent by them thus far notwithstanding). The initiative originally couched as an attempt to render void
the current Shepardson /Wu lawsuit, (which as of last night may be moot now that is now apparently
negotiable) is coming at great expense to you and to the town, both monetarily and structurally. Last
night they fairly well lectured you, the council, on the developer's rights to its own initiative, the alleged
liability to the town in challenging them, the "fact" that their momentum cannot be stopped (or
compromised), that you cannot put your own initiative on the ballot, and continued to reiterate the
dishonest and misleading statement "so Netflix can stay'. Even their attorneys can't seem to get away
from that lie, or are they trying to subconsciously reinforce it to themselves and the public?
If Mr. Shepardson was correct and sincere in that he has been offering, and is willing to drop his
lawsuit with no conditions, then the attorneys presentation (for Pau) was made even more pernicious
when they stated they would not, by some twisted logic, be willing to abide by the original TC Albright
parameters approved by the council in June, nor would they speak out against their own initiative if the
suit is dropped. Why not? What are they really asking for? This request, even after knowing win or
lose on a vote, they get what they already have and perhaps even more. They want it all.
Most disturbing last night were the two council members who were "troubled" by the effort of
fellow councilpersons to provide transparency to the public with an alternative initiative. One has to
wonder how cozy some politicians might be to Pau and the Carlyle Group.
Perhaps as Mr. Ventura suggested last night, it may be time for the public to demand some
forensic accounting of our public servants.
Unless Mr. Shepardson and Albright Way LI.0 settle the suit and follow the suggestion made last
night by the TC to follow the TC guidelines approved last June, I urge you on behalf of those of us who
elect you to give the townspeople an alternative to their initiative with all due haste. If we are paying
for their initiative to be on the ballot why not yours as well?
Respectful)
Jeff Whalen, Lo Vatos
a1a�,
From: John Shepardson <shepardsonlaw @me.com>
Sent: Wednesday, February 19, 2014 3:47 PM
To: Steven Leonardis; Marcia Jensen; Diane McNutt, Joe Pirzynski; Barbara Spector; Council;
Greg Larson; Robert Schultz
Subject: For Albright Ballot Matter and Report
Attachments: doc01699420140219140852.pdf
Dear Mr. Mayor, Council, Town Manager and Town Attorney:
One, in my humble view the manner in which Building Permits are to be issued under the TC approval and the
Developers'
Ballot Initiative are materially different. The TC approval calls for review and approval by five agencies, four
outside of the Town.
The Developers' proposal cuts out the outside agencies, and gives the CDD sole authority within the Town to
issue them, and to
make determinations of what is or is not substantially similar to the approved Specific Plan. Below is actual
document language.
Two, who is the outside consultant retained by the Town? I was surprised to hear how confident the Developers'
representatives were about what the consultant was going to say. Is it ethical for them to apparently have so
much
inside information? Perhaps as one particularly interested in campaign ethics (Markkula Center) as well as
government ethics, Council Member
Pirzynski could look into this?
Three, the existing EIR appears well suited to support counter Ballot projects identified in the EIR (see legal
authority below),
including the 350K Superior Alternative, or something like the existing Netflix buildings, and smaller second
phase buildings.
Four, Public choice is important in a democratic society. In fact, isn't this why Council Members McNutt
and Pirzynski
authorized a $40,000 election when Marcia Jensen was the only candidate, just so the public would have a
choice? What's
good for the Jensen candidacy is at least as good for the Carlyle Ballot Initiative, particularly when the Initiative
seeks to rescind an
existing Town approval, right?
The Citizens of Los Gatos deserve a choice, and not just one option, because with just one option, it is simple to
simply say yes.
If given the facts, the people can be trusted to deal with options. Don't they constantly chose between various
candidates?
They can be trusted with competing Ballots.
I`
t
25 Cal. 4th 165, *; 19 P.3d 567, * *; (emphasis added below with large type)
105 Cal. Rptr. 2d 214, * * *; 2001 Cal. LEXIS 1563
View Official Reports PDF of This Document
FRIENDS OF SIERRA MADRE et al., Plaintiffs and Appellants, v. CITY OF SIERRA
MADRE et al., Defendants and Appellants.
MWIT11 ::
SUPREME COURT OF CALIFORNIA
25 Cal. 4th 165; 19 P.3d 567; 105 Cal. Rptr. 2d 214; 2001 Cal. LEXIS 1563; 2001
Cal. Daily Op. Service 2523; 2001 Daily Journal DAR 3150; 31 ELR 20607
March 29, 2001, Decided
[ ** *226] The court also held that Ordinance No. I -97 -1
was not exempt under CEQA Guidelines section 15378 as
a ballot measure because, before placing it on the ballot, the
city council itself had approved Ordinance No. I -97 -1. The court
reasoned that Guidelines section 15378 was a codification
of Stein v. City of Santa Monica (1980) 110 Cal.
App. 3d 458 [168 Cal. Rptr. 39] (Stein, and was
not intended to exempt situations that are distinguishable
from Stein. Stein held only that placing a rent control
charter amendment on [ *182] the [* *578] ballot
on petition of the voters, where the city did not
engage in any other related matters or
projects, was not a project subject to
CEQA. Thus, the guideline
exempting ballot measures from
the CEQA EIR requirement applied
only when the public
agency acts solely in a ministerial
manner to place a citizen - initiated
�I�
measure on the ballot, or if the
public agency has already
undertaken CEQA review for a
project and submits approval of
the project to the voters.
(emphasis added)
Thank you for your attention to this matter.
John Shepardson
Town Approval below, crossed out by Developers in their Initiative:
Developers' Initiative language:
8 -1 8.2 Administration
"The primary adminstrator of the Specific Plan is the Town's Community
Development Director (Director). (emphasis added
"The Director shall review all development within the Specific Plan Area for consistency
with the Specific Plan as provided in Section 8.2.1
and 8.2.2 below. Development within the Specific Plan Area shall not require Architecture
and Site approval except as provided in Section
3)S
8.2.3 below. Amendments to the Specific Plan shall be processed in accordance with
Section 8.2.4 below.
"Prior to the issuance of building permits, the Director shall review all construction
drawings for all improvements and uses anticipated in
the Specific Plan Area for consistency with the Specific Plan. Building permits shall be
issued upon the Director's determination that the
improvements and uses contemplated are substantially consistent with the Specific
Plan. Architecture and Site Approval is not required
prior to issuance of a building permit when the Director determines that the improvements
and uses contemplated are substantially
consistent with the Specific Plan." (emphasis added)
JOHN A. SHEPARDSON, ESQ.
59 N. Santa Cruz Avenue, Suite Q
Los Gatos, CA 95030
T: (408) 395 -3701
F: (408) 395 -0112
ads
a
walkway must be accessible.
1. ACCESSIBLE PARKING: The parking lots, as well as the parking structure, where parkin;
is provided for the public as clients, guests or employees, shall provide handicap accerfable
p,.rking. Accessible parking spaces serving a particular building shall be loca�t on the
sho&gj accessible route of travel from adjacent parking to an accessible ntrance. In
buildings vit}r multiple accessible entrances with adjacent parking, access parking spaces
shall be dispe; -ed and located closest to the accessible entrances.
65. APPROVALSR7UIRED: The project requires the following, aeparnnents and agencies
approval before issa building permit:
a. Community Develapm: nt — Planning Division: Joel P on (408) 354 -6879
b. Engineering/Parks & Publi. Works Department: 1,447iar Bozorginia (408) 395 -3460
21
c. Santa Clara County Fire Dep Went: (408)34010
d. West Valley Sanitation District: (46?,) 37"-2407
11
e. Bay Area Air Quality Management I s . ct: (415) 771 -6000
Local School District: The Tow: kl for%° rrd the paperwork to the appropriate school
districts) for processing. A Jpy of the paid iect is required priorto permit issuance.
N
TO THE SATISFACTION OF T J- PARKS AND PUBLIC WOk'GS DIRECTOR:
Engineefing Division
rt
66. GENERAL: All public improvements shall be made according�t the latest adopted Town
Standard Dr. ^avings and the Town Standard Specifications. Al] k —,hall conform to the
appticab , Town ordinances. The adjacent public right -of -way shall be kef * clear of all job
relat. dirt and Aebris at the end of the day. .Dirt and debris shall not be wadi ,3 into storm
'. ainage facilities. The storing of goods and materials on the sidewalk and/or the s ;eet will
THIS PAGE
INTENTIONALLY
LEFT BLANK
From: Andrew H. Wu, J.D. <andrewwu @mindspring.com>
Sent: Wednesday, February 19, 2014 10:57 AM
To: Steven Leonardis; Marcia Jensen; Diane McNutt, Joe Pirzynski; 'Barbara Spector'; Council
Cc: 'Rose Zoia'; GEORGE.MIHLSTEN @lw.com; Greg Larson; 'John Shepardson'
Subject: Concurrence -- Reiterated Albright Public Offer
ATTORNEY COMMUNICATION
Dear Members of the Town Council:
As the only other Named Plaintiff /Appellant to the subject litigation, I hereby reiterate that Mr. John
Shepardson has my concurrence as to the terms and conditions of the "public offer," which was restated during
yesterday evening's Town Council Meeting.
Sincerely yours,
/S/
Andrew H. Wu, J.D.
LAW OFFICES OF ANDREW H. WU
925 W. Hedding Street
San Jose, CA 95126
Tel: (408) 984 -1850
Fax: (408) 553-0203
E -mail: andrewwu a mindsnnna.com
The information in this e-mail may be confidential and/or privileged. This e-mail is intended to be reviewed
only by the individual or organization named above. If you are not the intended recipient or an authorized
representative of the intended recipient, you are hereby notified that any review, dissemination or copying of
this e-mail and its attachments, if any, or the information contained herein is prohibited. If you have received
this e-mail in error, please immediately notify the sender by return e-mail and delete this e-mail from your
system. Thank you.
- - - -- Original Message---- -
From: John Shepardson [mailto:shenardsonlaw@me.com]
Sent: Wednesday, February 19, 2014 1:02 AM
To: Steven Leonardis; Council; Marcia Jensen; Diane McNutt; Joe Pirzynski; Barbara Spector; Town Manager
Cc: J.D. Andrew H. Wu; Rose Zoia; GEORGE.MIHLSTEN(aJlw.com
Subject: Reiterated Albright Public Offer
Confirming I reiterated at tonight's TC meeting last week's public offer before PC of a straight swap of Citizens
dropping the suits with prejudice if Developers agree to to abide by the exact terms and conditions of the
existing TC approval. No others terms or conditions, including attorneys fees.
�l�
John Shepardson
IM
Open to discussing contingency terms if Developers willing to actively, publicly and in good faith campaign
against their Ballot Initiative.
Sent from my iPhone=
2P-
From: John Shepardson <shepardsonlaw @me.com>
Sent: Friday, February 21, 2014 11:05 AM
To: Robert Schultz
Cc: Steven Leonardis; Marcia Jensen; Diane McNutt; BSpector; Joe Pirzynski; Greg Larson;
Council
Subject: Re: Albright & Wal -Mart Initiative
1. Under the SP, if she decides that something is not substantial, is there a away to have that determination
appealed?
2. Under standard government oversight, can a CDD determination be appealed?
JOHN A. SHEPARDSON, ESQ.
59 N. Santa Cruz Avenue, Suite Q
Los Gatos, CA 95030
T: (408) 395 -3701
F: (408) 395 -0112
CONFIDENTIALITY NOTICE: the information contained in this e-mail, including any attachment(s), is
confidential information that may be privileged and exempt from disclosure under applicable law. If
the reader of this message is not the intended recipient, or if you received this message in error, then
any direct or indirect disclosure, distribution or copying of this message is strictly prohibited. If you
have received this message in error, please notify Marti H. Castillo at the Law Office of JOHN A.
SHEPARDSON immediately by calling (408) 395 -3701 and by sending a return e-mail; delete this
message; and destroy all copies, including attachments. Thank you.
IRS CIRCULAR 230 DISCLOSURE
To ensure compliance with new requirements of the Internal Revenue Service, we inform you that, to
the extent any advice relating to a Federal tax issue is contained in this communication, including in
any attachments, it was not written or intended to be used, and cannot be used, for the purpose of (a)
avoiding any tax related penalties that may be imposed on you or any other person under the Internal
Revenue Code, or (b) promoting, marketing or recommending to another person any transaction or
matter addressed in this communication.
On Feb 21, 2014, at 9:24 AM, Robert Schultz wrote:
John,
I do not see any difference or conflict in this language than how the Town currently conduct business and
approves project. Once an A &S is approved, the CCD makes judgment calls on a daily basis as to whether the
construction plans are in substantial compliance with the approve A &S. The CCD's decision is not appeal for
the Albright project not for any other project when she makes that determination. However, there are many
times when it is a close call when something is substantial or not. In those cases, the CCD takes the change to
DRC and on to PC if there is an appeal. That is that case on any project and will be the case on this project. For
example, the specific plan calls for "Elevated walkways or bridges between buildings and parking garage ". It
has a picture of all 1 story bridge. If the constructions plans came in with 2 stories of bridges, the CCD would
consider that a substantial change and take it to DRC. On the other hand if the building was shifted 1 or 2 feet
due to topographical issues are other constraints and it did not affect lot coverage or setbacks then that would
be considered not substantial. I hope this helps.
From: John Shepardson [mailto:shepardsonlaw @me.com]
Sent: Thursday, February 20, 2014 6:51 PM
To: Robert Schultz; Steven Leonardis; Marcia Jensen; Diane McNutt; BSpector; Joe Pirzynski; Greg Larson; Council
Subject: Re: Albright & Wal -Mart Initiative
Albright Ballot Language
p. 2, para. 7 -- Reason for Ballot -- "clearly establish Town policies"
para. "The Amendments and Specific Plan are in the public interest"
P. 3, para. 11 -- Development permitted by the Specific Plan has been subject to environmental review (not true
re bridges), such that further review or story -pole demonstrations would not add to public's understanding
p. 5 By adopting Albright Specific Plan zoning... voters intent to rescind and do
hereby rescind, the existing zoning for the Property... [JS: Funding for Initiative from Developer,
so aren't they expressing an intent in a very
public way of rescinding their own project? If so, doesn't this cut against a vested rights argument, if they
openly and publicly showing they don't want the rights affording them. Aren't the Developers estopped to
assert vesting by the deliberate effort to rescind?].
P. 6 - -In approving this Initiative, it is the voters' intent to create a comprehensive
regulatory plan to govern the future use and development of the Property.
The Ballot measure with the greatest number of votes shall control in its entirety and other measures shall be
rendered void (not sure if this is legal)
in
p. 7 This initiative must be broadly construed in order
to achieve the purposes stated above.
Exhibits C & D -- amendments to GP and Zoning
P 1 -1
"One of the purposes of the Albright Specific Plan is to
provide a comprehensive framework
in which development can occur in
a planned, streamlined fashion rather than through a
piecemeal approach." QS: Streamlined -- through CDD,
piecemeal, CDD, DRC, PC & /or TC).
1 -2 -- "The Specific Plan shall be the primary means of
regulating and directing land use planning and
zoning in the Specific Plan Area."
1 -5 -- "The Albright Specific Plan is also a regulatory
document that provides development
standards and zoning regulations. Mandatory goals,
policies, and measures are denoted
by the use of the word 'shall.' These mandatory goals,
policies and measures must
be implemented, to the extent not already implemented
as of the effective date of the
3/ V
Specific Plan." [JS: So, the CDD shall made
determinations regarding what is or is
not a substantial change, and she cannot referred out to
the DRC, PC or TC ? ? ? ?].
3 -2 "Elevated walkways or bridges between buildings
and parking garage"
3 -3 Permitted uses
"Office, including corporate, administrative, business
and professional"
"Light manufacturing"
"Office serving uses designed to serve those employed
at the site... recreational,
conference, restaurants, health and well facilities and
ancillary uses"
[JS: The way I read it, the CDD has sole discretion to
decide what is or is not
in substantial compliance with the approved Specific
Plan. I see no right of appeal
because of the mandatory language, the SP is the
comprehensive regulatory framework, and the
language that expressly states the SP supersedes the
Zoning Code to the extent in
conflict.
Also,
the SP plan is to be broadly
construed to effectuate its
purposes,and one of the express
purposes
is for development to occur in a
streamlined fashion. If the CDD
referred out decisions to the DRC,
PC or TC, or allowed an appeal
process of CDD decisions, could the
Town be sued and probably lose ?] .
JOHN A. SHEPARDSON, ESQ.
59 N. Santa Cruz Avenue, Suite Q
Los Gatos, CA 95030
T: (408) 395 -3701
F: (408) 395 -0112
CONFIDENTIALITY NOTICE: the information contained in this e-mail, including any attachment(s), is
confidential information that may be privileged and exempt from disclosure under applicable law. If
the reader of this message is not the intended recipient, or if you received this message in error, then
any direct or indirect disclosure, distribution or copying of this message is strictly prohibited. If you
have received this message in error, please notify Marti H. Castillo at the Law Office of JOHN A.
SIY
V
SHEPARDSON immediately by calling (408) 395 -3701 and by sending a return e-mail; delete this
message; and destroy all copies, including attachments. Thank you.
IRS CIRCULAR 230 DISCLOSURE
To ensure compliance with new requirements of the Internal Revenue Service, we inform you that, to
the extent any advice relating to a Federal tax issue is contained in this communication, including in
any attachments, it was not written or intended to be used, and cannot be used, for the purpose of (a)
avoiding any tax related penalties that may be imposed on you or any other person under the Internal
Revenue Code, or (b) promoting, marketing or recommending to another person any transaction or
matter addressed in this communication.
On Feb 20, 2014, at 5:59 PM, John Shepardson wrote:
http://www.cbcearthlaw.com/uploads/l/l/8/8/11883175.
/wal- mart _.pdf
Wal -Mart Goes to the Ballot Box in Inglewood— A
Case Study in the Attempted Use, Legal Challenge, and
Voter Rejection of an
Initiative Measure to Approve a Large Scale
Development Project
By Jan Chatten -Brown and Douglas Carstens,
[JS: Mr. Carstens is a consulting land use attorney on
the Citizens lawsuits.]
Wal -Mart's Initiative effort was not the first attempt by development interests to secure direct voter approval. However, it crystallized
a number of issues involving the interplay of the initiative power, the California Environmental Quality Act, Community
Redevelopment Law, Planning and Zoning Law, and the Subdivision Map Act that are likely to reemerge elsewhere. Under
California's initiative laws, it is entirely possible that Wal -Mart or other developers will try similar initiative efforts to avoid the time
and expense of
2environmental and administrative review. This article examines the origin and legality of the Wal -Mart Initiative, and the
implications Wal -Mart's effort has for land use initiatives in California.
2. Legal Issues Prohibition on Naming Private Corporations. California
Constitution Article II, Section 12 states, in relevant part: "No ... statute proposed ... by initiative, that ... names or identifies any
private corporation to perform any function or to have any power or duty, may be submitted to the electors or have any effect."
Plaintiffs argued that the Initiative violated this prohibition by naming Wal -Mart to perform the function of anchoring a large retail
development. Wal -Mart, however, claimed it was not named or identified, arguing the Initiative merely referred to retailers "such as"
Wal -Mart and the reference to Wal -Mart and Sam's Club, a retail division of Wal -Mart, in one of the figures in the Initiative was "for
illustrative purposes only." Wal -Mart also argued that its naming did not grant it a power or function, saying it would have to vie for
space just as would
zany other potential tenant. There was much evidence that Wal -Mart was to benefit from the Initiative,
6) rb,
especially as the election progressed. First, the Initiative was sponsored by "The Committee to Welcome Wal -Mart to Inglewood," as
disclosed to people who signed the Initiative petition when it was circulated. Second, an August 18, 2003 letter to the City Attorney
from an attorney acting on behalf of the Committee to Welcome Wal -Mart and Wal -Mart attached a proposed ballot title and
summary stating, in part: "This initiative measure proposes a specific plan ... including a new Wal- Mart." Third, an Initiative
summary prepared by the City Attorney, and circulated to the voters stated "The retailers include Wal- Mart... " Fourth, the Initiative
designated Wal -Mart and Sam's Club building areas to occupy 440,000 square feet of the 650,000 square foot retail complex. Fifth,
both the campaign to qualify the Initiative for the ballot and the campaign to pass the Initiative were largely paid for by Wal -Mart.
Most importantly, the campaign literature and ballot arguments, which can be used to interpret the Initiative (Hermosa Beach Stop Oil
Coalition v. City ofHermosa Beach (2001) 86 Cal.AppAdi 534, 551), made it clear that the Initiative was entirely about securing a
Wal -Mart at the site.
In Pala Band of Mission Indians v. Board of Supervisors (1997) 54 CalApp. 4th 565, in a post - election review a court held an
initiative naming a specific private waste disposal company as the applicant for a project and providing that it would submit a detailed
site plan violated Article 11 section 12. During the pre - election review of the Wal -Mart Initiative, and without having the
8
campaign literature to evaluate, the trial court did not find the evidence of the Wal -Mart Initiative's violation of Article II section 12
as clear or as compelling as the facts in Pala Band.
Preemption by State Law. Plaintiffs believed the Initiative impermissibly attempted to approve a development plan that would
supercede an existing redevelopment plan, grant approval of a tentative tract map, and vacate public easements without complying
with state law. They viewed the Initiative as void because these actions were preempted by the state. "If otherwise valid local
legislation conflicts with state law, it is preempted by such law and is void." (Candid Enterprises, Inc. v. Grossmont Union High
School Dist. (1985) 39 Cal.3d 878, 885.) "In matters of statewide concern, the state may if it chooses preempt the entire field
to the exclusion of all local control." (COST, supra, 45 Cal.3d at 511.)
Community Redevelopment Law. Hollywood Park is within a redevelopment project area designated pursuant to the Community
Redevelopment Law. ( "CRL," Health and Sall Code § 33000 et seq.) The redevelopment plan for the area sets forth the allowable land
uses, the general configuration of streets, and other matters required by CRL. (Health and Saf. Code § 33333.) The CRL declares the
redevelopment of blighted areas "to be a governmental function of state concern, in the interest of health, safety and welfare of the
people of the state and of the communities in which the areas exist." (Redevelopment Agency of the City of Berkeley v. City of
Berkeley (1978) 80 Ca1.App.3d 158, 169.)
9
The Plaintiffs argued the Initiative was entirely preempted because the Legislature had occupied the field of community
redevelopment, exclusively delegating redevelopment planning authority to the City Council and redevelopment agency. (Health &
Saf. Code § 33007.) "A legislative intent to preempt the field of community redevelopment is apparent.... In view of the
Legislature's intent to preempt the field [of redevelopment], we conclude that Health and Safety Code section 33204 [of the
Redevelopment Law] does not authorize a charter city to regulate the administrative actions of the city's redevelopment agency by
initiative proceedings" (Redevelopment Agency of Berkeley,supra, 80 Cal.App.3m at p. 169.)
Proponents of the Initiative argued the Initiative did not change the redevelopment plan because there was no conflict between the
Initiative and the adopted redevelopment plan. Even if it did, Initiative proponents relied upon Yost v. Thomas (1984) 36 Cal.3d 561,
to argue that approval of the Homestretch Specific Plans was a legislative, not administrative action, and thus was clearly allowable
through a referendum or, by analogy, through an initiative.
The constitutional right of referendum was adopted during the same 1911 revisions which adopted the right of initiative. ( J
However, Plaintiffs believed the ability to referend a specific plan did not imply an ability to approve it by initiative when it affected a
redevelopment area.4 CRL
4A general plan may be amended by initiative. (DeVita v. County of Napa (1995) 9 CalAth 763, 796.) Therefore, Plaintiffs did not
contend the general plan
Cal. Const., art 11, § 9
10
expressly authorizes the use of referenda at certain points in the redevelopment planning process, but there is no authorization to offer
such amendments through the initiative process. (Redevelopment Agency, supra, 80 Cal.App.3m at p. 169.) Thus, Plaintiffs concluded
the express authorization granted by the CRL to exercise the referendum power does not imply the right to use the initiative process
because the two reserved powers have different purposes. (Jahr v. Casebeer (1999) 70 Ca1.App.4th 1250, 1259.)
During pre - election review, the trial court found the issues related to CRL to be complex and unclear, and therefore declined to rule on
this aspect of the Initiative's validity before an election could be held.
Subdivision Map Act
Plaintiffs argued the Initiative was preempted by the Subdivision Map Act, which is "`the primary regulatory control' governing the
subdivision of real property in California." (Gardner v. County of Sonoma (2003) 29 CalAth 990, 996.) Among its purposes are "to
encourage and facilitate orderly community development, coordinate planning with the community pattern established by local
authorities, and assure proper improvements are made, so that the area does not become an undue burden on the taxpayer." (Id. at
998.)
The Subdivision Map Act entrusts the "legislative body of a city or county" with the duty of ensuring that a proposed site of
development is "physically
7 / 2(
amendment portions of Wal- Mart's initiative were legally defective. However, the general plan amendment portions of the initiative
comprised a mere three pages of
I1
suitable" for the type of project and its density, will not "cause substantial environmental damage," and will not "cause serious public
health problems..." (Govt. Code § 66474.) "Regulation and control of the design and improvement of subdivisions are vested in the
legislative bodies of local agencies." (Govt. Code'66411, emphasis added.) To the Plaintiffs, this showed that the Legislature
intended to delegate control of the subdivision process exclusively to the City Council, not to the electorate. (COST,
supra, 45 Cal.3d at 511.)
Approval of a tract and/or parcel map is an administrative act. (Lincoln Property Co. No. 41 v. Law (1975) 45 Cal.App.3d 230, 235.)
Therefore, Plaintiffs argued the tract map could not be approved by initiative. Wal -Mart argued that "the initiative does not approve a
tract map," though the Initiative included a tract map that subdivided the area into 26 parcels and referred to the Tentative Tract Map
in no less than twelve places. It made nine findings "For the purposes of the Subdivision Map Act." Plaintiffs thus argued the
Initiative approved the Tentative Tract Map by eliminating any City Council discretion to disapprove tract maps: the Initiative "is a
comprehensive, stand alone planning document that preempts and replaces all of the standards, criteria, procedures for review ... and
other requirements required by Chapter 12 of the Municipal Code [the City's Subdivision Regulations], except as otherwise expressly
set forth herein." However, Wal -Mart argued the Initiative merely required future maps to be evaluated against the Tentative Tract
Map set forth in the Initiative for
the entire 71 page initiative.
12
substantial consistency with it.
Again, during pre- election review, the trial court identified the arguments made by each side but declined to rule on the merits of the
Subdivision Map Act challenge.
Abandonment of Public Street and Utility Easements
The Public Streets, Highways, and Service Easements Vacation Law (Sts. & Hy. Code § 8300, et seq.) delegates public easement
vacations duties to local legislative bodies: "The legislative body of a local agency may initiate a [vacation] proceeding...." (Sts. &
Hy. Code § 8320.) Plaintiffs argued that when the Legislature specified that " `Legislative body' means ... in the case of a city, the
city council or other body which, by law, is the legislative body of the government of the city" (Sts. & Hy. Code § 8304, emphasis
added), it intended an exclusive delegation of that authority to the City Council of Inglewood, thus precluding action by
initiative. Citizens for Improved Sorrento Access, Inc. v. City of San Diego (2004) 118 Cal.AppAth 808 recently confirmed that the
vacation of public street easement was a matter of statewide concern, specifically delegated to local legislative bodies.
A parcel map recorded on September 2, 1999, by Hollywood Park, Inc., owners of the Homestretch property in 1999, showed no less
than 39 easements
5 "`Vacation' means the ... abandonment ... of the public right to use a street ... or public service easement." (Sts. & Hy.Code
§ 8306.)
13
for various purposes. One of the holders of interests in the parcel was the "City of Inglewood, Easement holder for Public Street
Purposes ...... under an easement obtained through a condemnation proceeding in 1932. Because the Initiative proposed construction
over the entire Home Stretch property, Plaintiffs contended it attempted to vacate public easements in a way that interfered with the
City's duties to implement Easements Vacation Law. However, Wal -Mart argued that no public easements were vacated, and even if
there were, that it was a legislative act within the purview of the City's electorate to undertake. (Heist v. County of Colusa (1984) 163
Cal.App.3d 841, 845 -848.) These questions, like others, were not answered by the court during pre - election review.
is
JOHN A. SHEPARDSON, ESQ.
59 N. Santa Cruz Avenue, Suite Q
Los Gatos, CA 95030
T: (408) 395 -3701
F: (408) 395 -0112
81 6
From:
John Shepardson <shepardsonlaw @me.com>
Sent:
Friday, February 21, 2014 6:32 PM
To:
Steven Leonardis; Council
Subject:
Albright Ballot and Report (Tunnel ?)
Mr. Mayor and Council:
Please have Staff look into this rather curious and terse reference to a tunnel:
4.4.1 Building Accessibility
"If access provided from a pedestrian tunnel..."
Thank you for your attention to this email.
JS
JOHN A. SHEPARDSON, ESQ.
59 N. Santa Cruz Avenue, Suite Q
Los Gatos, CA 95030
T: (408) 395 -3701
F: (408) 395 -0112
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