Attachment 33-----Original Message-----
From: John Shepardson [ rnailto :s hcpardsonlaw(i·1{m c.com ]
Sent: Friday, August 19, 2016 4:07 PM
To: Laure l Prevetti; BSpector; Marico Sayoc; Steven Leonardis; Rob Rennie; Marcia Jensen;
Robert Schultz; Council ; Don Capobres; Wendi Baker
Subject: No. 40: Questions re Density Bonus
Laurel:
I suggest the staff address the following questions befo re the next meeting:
1. What is the effect of the 2013 application on the density bonus i ssues?
2. What i s the effect of the reapplications after 1/1 /20 15 on the density bonus issues?
3. When did the developer firs t apply for a density bonus? Did the original application include a
request for a dens ity bonus?
4. Did the town accept and deem submitted an application for a dens ity bonus? When?
5. What are the town 's policies for acceptance and submittal of an application for a den sity
bonus?
6. How, if any, did the creation of the specific plan for the No. 40 affect the process of applying
for a density b o nus? ·
7. Is the process the City of Los Angeles following the same or similar to the one, if any, in Los
Gatos?
Respectfully,
John Shepardson
Lo s Gatos resident
ATTACHMENT 3 3
From: Maria Ristow [rnailto:ristm:v"(a ,comcas t.n et )
Sent: Monday, August 22, 2016 l 0:22 AM
To: Council
Subject: North 40: How NOT to create "open space"
Here is the "park" at Lester Square/Montecito (Swnason Ford).
With concerns about how open space will be available at the North 40, please consider putting in
language prohibiting fencing/walls around the park/paseos, and prohibit a ny allowance to make
those spaces private, as has been done at this patch of grass in the middle of asphalt. Drought-
ignorant, not available to the public, and un shaded.
Maria Ristow
Los Gatos Community Alliance
From: Barbara Kautz [mailto:bkautz@goldfarbl i pman.com]
Sent: Tuesday, August 23 , 2016 3 :18 PM
To: Laurel Prevetti; Joel Paulson
Subject: Letter Responding to Issues Raised
Laurel and Joel -
Attached for the Town's review and consideration is a letter, and related attachments, regarding
is sues raised at the last Council meeting. We would appreciate your distribution of this to the
Town Council. Please feel free to contact us if you have any questions.
We have sent the letter separately to the Town Attorney.
B arbara E . K autz
h\.aJ / ,, guld ra r bl i pm an.com
G oldfa rb & Li pman LL P
1 .HJ(1 Clay <;;,t r ed I Ele venth F l o or I Oak land CA (J 4 6 I 2
~ I 0. ).)J (1. 6.1) 6 go I cl forb 1 i p m<m .com
I hi-., tr 11i..;mi-.. ion is intLndcd on ly for the LhC nl' ,tdtl v ''>u:: and m~1y ..: 1 1i·1in pri·.ik:;L·d
inlorrn:,11•111. c·ml!Ju1td :md c>.cmpt from d i-;cJosun .. un<lcr app li(.;:1hl · '"". I '">du .• rL' !lnt tllL
i"lcn<\;d n ....... ipi cnt. or r c~pon-..i ok fo1· J d i\L.r inj: ti 1...1111...-sag1.. .<>till; i lklh.1..d 1\.1..'pi'-·nt. ,:.uu :nc
1·1crcby notifi e d th,tt .my d i<;-;c m inatinn dis t ribULion n r conving of'thi-; co111 1m.111c.ition i:-.
prnhibitcd. ll nu received thi<> c-m<1i l in er ror. pka-;i: irnn 1.xL1tcly noti t)' ~he s1.:ndcr '1'1-.·ply i1'!.!.
l• 1 thi' C()nJJllllllic:\tiun or by phoning :,cnd~r a t 5 J 0.~36.6336. nH llk '.'l)ll.
L -aui-o-P-'ntn" /'.:>ti ff.. -•
LEGISLATIVE INFORMATION
AB-2556 i:>enslty bonuses. (201s-2016J
SECTION 1 . Section 65915 of the Government Code Is amended to read:
65915. (a) When an applicant seeks a density bonus for a housing clev.elopment within, or for the donatl.on of
land for housing within, the jurisdiction of a city, county, or city and county, that local government shat! provide
the applicant with incentives or concessions for the production of housing units and child care facilities as
prescribed in this section. All elees, ee1:n1tles, er cjtles aAt1 ceuAt1es A city, county, or city and county shall
a dopt an ordinance that specifies how compliance with this section will be implemented. Failure to adopt an
ordinance shall not relieve a city, county, or city and county from complying with this section.
(b) (1) A c ity, county, or city and county shall gr.ant one density bonus, the amount of which shall be as
specified In subdivision (f), and incentives or concessions, as described in subdivision (d), when an applicant for
a housing development seeks and agrees to construct a housing development, excluding any units permitted by
the density bonus awarded pursuant to this section, that will contain at least any one of the following:
(A) Ten percent of the total units of a housing development for lower income households, as defined in Section
50079.S of the Health and Safety Code.
(B) Five percent of the total units of a housing development for very low income households, as defined in
Section 50105 of the Health and Safety Code .
(C) A senior citizen housing development, as defined i n Sections 51.3 and 51.12 of the Civil Code, or a
mobilehome park that limits residency based on age requirements for housing for older persons pursuant to
Section 798. 76 or 799.S of the Civil Code.
{D) Ten percent of the total dwelling units in a common interest development, as defined in Section 4100 of the
Civil Co de, for persons and families of moderate income, as defined i n Section 50093 of the Health and Safety
Code, provided that all units in the development are offered to the public for purchase.
(2) For purposes of calculating the amount of the density bonus pursuant to subdivision (f), an applicant who
requests a density bonus pursuant to this subdivision shall elect whether the bonus shall be awarded on the
basis of subparagraph (A), (B), (C), or (D) of paragraph (1).
(3) For the purposes of this section, "total units" or "total dwelling units" does not include units added by a
density bonus awarded pursuant to this section or any local law granting a greater density bonus.
(c) (1) An applica nt shall agree to, and the city, county, or city and county shall ensure, the continued
affordability of all very low and low-Income rental units that qualified the applicant for the awa rd of the density
bonus for 55 years or a longer period of time if required by the construction or mortgage financing assistance
program, mortgage insurance program, or rental subsidy program. Rents for the lower income density bonus
units shall be set at an affordable rent as defined in Section 50053 of the Health and Safety Code .
(2) An applicant shall agree to, and the city, county, orTity and county shall ensure that, the in itial occupant of
all for-sale units that qualified the applicant for the award of the density bonus are persons and families of very
low, low, or moderate income, as required, and that the units are offered at an affordable housing cost, as that
cost is defined in Section 50052.5 of the Health and Safety Code. The local government shall enforce an equity
sharing agreement, unless it is in conflict with the requir.ements of another public funding source or law. The
following apply to the equity sharing agreement:
(A) Upon resale, the seller of the unit shall retain the value of any improvements, the downpayment, and the
sel ler's proportionate share of appreciation . The local government shall recapture any initial subsidy, as defined
in subparagraph (B), and its proportionate share of appr.eciation , as defined in subparagraph (C), which amount
shall be used within five years for any of the purposes described in subdivision (e) of Section 33334.2 of the
Health and Safety Code that promote home ownersh i p.
(B) For purposes of this subdivision, the local government's ini t ial subs idy shall be equa l to the fair market
value of the home at t he time of i nitial sal.e minus the in itial sale price to the moderate-income household, plus
t he amount o f any d-ownpayment assistance on nortgage assistam:e. If up-on resale the market v.alue is lo.wer
than tbe initial marltet value, then the value at the t i me of the resale shall be used as the initial market value.
(C) For purposes of this subdivision, the loca l. government's proportionate share of appreciation shall be equal
to t hentio of the lo-cal government's initial subsid y to the fair market value of-the home at-the time of initial
s ale.
(3 ) (A) An applicant shall be ineligible for a density bonus o r any other in ce ntives or concessions under this
s ection if the housing development Is propesed on any property that i ncludes a parcel or parcels .. o.n which r ental
dwelling [Jnit s .are or, if the dwelling units have been vacated or demolished i n the five-year period preced ing
the application, have been subject to a record·ed covenant, ordinance, or law that restricts rent s to lev els
affordable t o per.sons and families of lower o r very low income; subject t o any other form of rent or price
control through a public entity's val id exercise of its police power; or occupied by lower or very !ow income
h ou seholds, unless the proposed housing devel opment replaces those un its, and either of-the fo llowing applies :
(i) The proposed housing development, i nclusive of the units replaced pursua nt to this parag rap h, contains
affordable units at the perce ntages set forth in su bdivision (b).
(ii) Eac h unit In the development, exclusive of a manager's unit or units, is affo rdable to, and occupied by,
either a lower or very low inco me household .
(B) For the purposes of this parag raph, nreplace" sh all mean either of the followi ng :
(i) If any dwelling units described in subparagraph (A) are occupied on the date of applicat ion , the proposed
housing devel opment shall provide at least the same number of units of equivalent size or t·;pe, or lloth, t o be
made available at affordable rent or affordable housi ng cost to, and occupied by, persons and fam i lies i n the
same or lower In come category as those ho1::1seholds i n occupancy. If the income category of the household In
occup ancy is not known, it shall be rebuttably presumed that lower income renter households occupied these
units in the same proportion of lower inrome renter households to a ll renter households with in the j urisdiction,
as determined by the most recently avaflable data from the United States Department of Housing and Urban
Development's Comprehensive Housing Affordability Strategy database. For unoccupied dwelling units
described in subparagraph (A) in a development with occupied units, the proposed housi ng development shall
provrde units of equival ent size or t'(l!e, of be~ to be m ad e ava i la ble at affordable rent or affordable hous ing
co st t o, and occupied by, persons and families in the same or lower Income category ift.4l:!e-as the last
household In occupancy. If the income category of the last h ousehold in occupancy fs not known, it shall be
rebuttably presumed that lower Income renter households occupied these unit s in the sa m e proportion of
affefclabillt·f as tlie eceu~letl uRi ts. lower income renter h ouseholds to all renter households within the
jurisdict ion, as determined by the most re cently ava lfab/e data from the United States Department of Housing
and Urban Development's Comprehensive Housing Affordability Strategy database. All replacement ca lculation s
resu lting i n fractiona l units shall be rounded up to the next whole number. If the replacem ent units will be
rental dwe lling units, these units s hall be subject to a recorded affordabilit y restriction fo r at l eas t SS yea rs. If
the p roposed development is fo r-sal e units, the units replaced shall be subject to parag raph (2).
(ii) If all dwelling units described In s ubparagraph (A) have been vacated or demolished within the five-y ea r
period preceding the application, the proposed housing development s hall provide at least the same number of
units of equivalent size ~,. as existed at the hig hpoint of t hose units in the f ive-year pe ri od
preceding the application to be made available at affordable rent or affordabt.e h ousing cost to, and occupied by,
persons and families in the sa me or lo wer income cat egory as those persons and families in occupancy at that
ti me , if known. If the incomes of t he persons and families i n occupancy at the highpoint is not known ,~
hnlf oHh~eqvirc6-un lt-s--sh~l-bc m~llaele-.*· frorda!lle-re-Ft£--e n;oo~b!e-fl1:>t1 ~fl9-£0SH (1 r -<ioct 6E€1.1µied
by,-It shall be rebuttab/y presumed that low-income and very low income renter households occupied these
units in the same proportion of /ow-income and very low income ~ aAe fafflilies aAEl eAe half ~f the
"2•1 tt~ro<'l-uri 1c.fr .nllalf-be-mM~a ll ablr.....for-re~ooDl e heusi~6-to;-i1Rd--0€Et¥.;ie('...-l1~w-tfloomc
perseAS-afla-famiUes.-renter households to all renter households within the jurisdiction, as determined by the
most recently available data from the United Sta tes Department of Housing and Urban Development's
Comprehensive Housing Affordability Strategy database. All re placement calculations resulting In fractional
units shall be rounded up t o the next whole number. If the replacement un its will be rental dwelling units, these
units sball be subj.ect to a reco rded affordability restrict ion for at least 55 years. I f the proposed developm ent is
for -safe u nits, the units replaced shall be subj e ct t o paragraph (2).
(C) Notwithstanding subparagraph (B), for any dwelling unit described in svbparagraph (A) that is or was,
within the five-year period preceding the application, subject to a form of rent or price control through a local
government's valid exercise of its police power and that Is or was occupied by persons or famlfles above lower
income, the city, county, or dty and county may do either of the following :
(i) Require that the replacement units be made available at affordable rent or affordable housing cost to, and
occupied by, tow-income pers-0ns or faml/fes. If the replacement units will be rental dwelling units, these units
shall be subject to a recorded affordabil/ty restriction for at least 55 years. If the proposed development is for-
sate units, the units replaced shall be subject to paragraph (2).
(ii) Require that the units be replaced in compliance with the jurisdiction's rent or price control ordinance,
provided that each unit described in subparagraph (A) is replaced. Unless otherwise required by the
jurisdiction's rent or pnce control ordinance, these units shall not be subject to a recorded affordablflty
restriction.
(D) For purposes of this paragraph, "equivalent size" means that the replacement units contain at least the
same total number of bedrooms as the units being replaced.
fE7 (E) PaFa!jFat)R (3) ef sl:leei·,lsleA (c) Subparagraph (A) does not apply to an applicant seeking a density
bonus for a proposed housing development if his or her application was submitted to, or processed by, a city,
county , or city and county before January 1, 2015.
(d) (1) An applicant for a density bonus pursuant to subdivision (b) may submit to a city, county, or city and
cou n ty a proposal for the specific incentives or co ncessions that the applicant requests pursuant to this section,
and may request a meeting with the city, county, or city and county. The city, county, or city and county shall
grant the concess ion or incentive requested by the applica nt unless the city,' co11nty , or city and county makes a
written finding, based upon substantial evidence, of any of the following:
(A) The concess ion or incentive is not required in order to provide for affordable h ousing costs , as defined In
Section 50052.5 of the Health and Saf ety Code, or for rents for the targeted u nits to be set as sp ec ified in
subdivision (c).
(B) The concess ion or incentive would have a spea~k' specific, a dverse impact, as defined in paragraph (2) of
subdivisio n (d) of Section 65589 .5, upon public health and safety or the physica l environment or on any real
p roperty that 1s hsted i n t he California Register of Historical Resources and for which t here 1s no feasible method
to sa tisfactorily mitigate or avoid the s~.J fi€ specific, advers e imp act withou t rendering the development
unaffordable to low-and moderate-income households.
(C) The concession or incentive would be contrary to state or federa l law .
(2) The applicant shall receive the following number of incentives or concessions :
(A) One incentive or concession for projects that incl ude at least 10 percent of the total un its for lower i ncome
households, at least 5 percent for very low income househo lds, or at least 10 percent for persons and families
of moderate i ncome in a common interest development.
(8) Two i ncentives or concessions for projects that include at least 20 percent of the total uni ts for lower income
household s, at least 10 percent fo r very low i ncome households, or at least 20 percent for persons and families
of moderate income i n a common interest development.
(C) Three Incentives or concessions for projects that include at least 30 percent of the total units for lower
income households, at least 15 percent for very low income households, or at least 30 percent for persons and
families of moderate income in a co mmon Interest development.
(3) The applicant may initiate judicial proceedings if the city, county, or city and county refuses to grant a
requested density bonus, incentive, or concession . If a court finds that t he refusal to grant a requested density
bonus, Incentive, or concession Is in violation of th is section, the cou rt shall award the plaintiff reasonab le
attorney's fe es and costs of suit. Nothing in this subdivi sion shall be interpreted to requ ire a local government
to grant an i ncentive or concession that has a specific, adverse impact, as defined i n pa ragraph (2) of
subdiv1s1on (d) of Section 65589.5, u pon health, safety, or the physical environment, and for which there Is no
feasible method to satisfactorily m itigate or avoid the specific adverse impact. Nothing in this subdivision shall
be interpre ted to r equire a local government to grant an incentiv e or concession that woul d have an adverse
Im pact on a ny real property that is listed In the California Register of Historica l Resources . The city, county, o r
city and county shall establish procedures for carrying out this section, that s hall Incl ude legislative body
approval of the means of compliance with this section .
GROSVENOR
~
EDEN
HOUSING
SUMMERH ILL HOMES "
COMMUNITIES OF D IST I NCT I O N
North 40 Project Summary and Justification
Summary:
Phase I of the North 40 is a comprehensive proposal by Grosvenor, SummerHill Homes, and
Eden Housing to realize the Town's vision for the areas described as the Lark and Transition
Districts . The proposal is for a ma ste r plan that will provide continuity with the development of
future phases, including the Northern District. In this proposal we believe that we have brought
The Town's Draft Specific Plan, including the Specific Plan Vision Statement and Guiding
Principles, to life.
Approximately 66,000 square feet of retail and restaurant offerings, including an intimate
20,000 +/-square foot Market Hall, are proposed in the Transition District to serve this new
community as well as the existing surrounding neighborhoods.
The residential homes proposed include diverse residential types that target the Town's unmet
needs: for young professionals, move -down buyers and seniors. These include 60 senior
affordable apartments directly above the Market Hall, 88 high-quality move-down
condominiums adjacent to the senior housing, and 183 homes designed with the young
profe ssi onal or couple in mind. All new homes will be complimented by and provide
convenient access to goods and services in the new neighborhood retail shops .
A network of paseos , parks, and gathering spaces linked by orchard trees and community
gardens provide open space that is well over 30% of the project area, with beautiful view
corridors and places for residents to come together.
The proposed community is a celebration of the Los Gatos quality of life, and focuses on the
Draft Specific Plan's Vision Statement and Guiding Principles :
Town Council Vision Statement:
The North 40 reflects the special nature of our hometown. It celebrates our history,
agricultural heritage, hillside views and small town character. The North 40 is
seamlessly woven into the fabric of our community, complementing other Los Gatos
residential and business neighborhoods. It is respectful of precious community resources
and offers unique attributes that enrich the quality of life of all our residents.
Guiding Principles:
• The North 40 will look and feel like Los Gatos
• The North 40 will embrace hillside views, trees, and open space.
• The North 40 will address the Town 's residential and/or commercial unmet needs.
• The North 40 will minimize or mitigate impacts on the Town 's infrastructure, schools,
and other community services.
Open Spaces
The Draft Specific Plan requires a minimum of 30 % of each application to be dedicated as open
space, which is more open space than is found in many existing Los Gatos communities.
Because the open space requirements are such a prominent element of the Draft Specific plan,
the open spaces created within the proposed community are more than merely green areas or
parks to meet a minimum requirement. Instead, the greens have been thoughtfully designed as
buffers between existing roadways, connecting paseos, community gardens, gathering places,
and view corridors. The open space elements will be a prominent feature, linking the districts
and future residents while paying tribute to the agricultural history of the property. In addition,
the amenities provided within the open spaces will not only appeal to the young professionals,
seniors and move-down buyers but will also complement the existing open space offerings
within the Town. Overall, the proposal includes over 40% of the area as open space {30% is
required) and over 23% as "green" open space {20% is requ ired), which demonstrates the focus
that these spaces have been given in driving the design of the commun ity.
The applicant has enlisted Los Gatan Les Kishler to advise on the des ign, maintenance and
programming of community gardens and orchard treatments. Together with the project's
landscape architects, the vision for the proposed open space programming has been
established, and includes the following:
Orchard Buffers and Plantings: A 30' orchard buffer is proposed both along Lark
Avenue and Los Gatos Boulevard along the property frontage. The area along Lark
Avenue will include a multi-use trail that can be utilized by pedestrians and bicyclists,
and offers path through the orchard trees. A vineyard will greet community members
as they enter the neighborhood serving retail area in the Transition District.
The majority of the orchard plantings are fruit-bearing, and will provide opportunities
for community or local group harvesting. Based on recommendations, a number of
varietals are proposed, which work together to maintain long-term soil fertility as well
as a diverse offering of produce, including almond, apricot, apples, peaches, citrus,
persimmons and pomegranate. In addition being located within the buffer along
~ ~
GROSVENOR
~
EDEN
HOUS I NG
SUMMERHILL HOMES -
CO MMUNIT I FS OF O I HIN C T I ON
existing roads, the orchard treatments are continued along A Street and within the
paseos .
Community Gardens: Transition and Lark District residents will be able to connect in the
joi nt community gardens in the Central Community Park. Thirty nine plots are
programmed in the community park, so community members will be able to adopt-a-
plot. The gardens strive to bring together the young professionals, seniors and move
down buyers in one location. Additional smaller raised garden beds will be included in
the open space plaza of the Eden building to provide more gardening opportunities for
the seniors as Eden ha s had great success w ith this program in the past . Finally, a
community garden is proposed for an onsite restaurant use . This garden w i ll not only
grow produce that can be utilized in the restaurant, but will also offer a staging area for
cooking demonstrations .
Paseos and View Corridors: In addition to the Grand Paseo found on the southeast
portion of the property, numerous paseos {in connection with right-of-ways) have been
strategically situated to unite the residents and provide view sheds towards the
hillsides. In addition to A Street, there are three paseos that offer southern views, and
multiple paseos and pedestrian corridors that provide views to the east. Further, these
paseos offer connectivity throughout the districts, which will encourage pedestrian and
bicycle use within the North 40.
Additional Amenities: A variety of additional active and vibrant open space amenities
are proposed . These include places to gather with neighbors, unwind, rela x, and
embrace the outdoor lifestyle that Lo s Gatans relish . A bocce court in the Central
Community Park, multiple fire pits, large outdoor communal grilling and dining areas, a
dog park and walking trail for four legged friends, turf areas with sun shades and
hammocks can all be found in the park and paseo areas. In addition, the move-down
buyers will enjoy a resort-like common plaza area complete with pool, exercise facilities,
and lounge chairs. The retail portion of the property will host a vineyard, cafe seating
and relaxing plaza spaces. Together, the districts will provide a unique synergy of
amenities.
Residential Program:
Between the Lark and Transition Districts, five distinct residential programs will be offered, all
tailored to meet the Town's unmet needs for places for young professionals, empty nesters,
and income-restricted seniors to live. These include 88 high-end "move down" condomin i ums,
~
GROSVENOR
rrAn
EDEN
H OU SI N G
SUMMER HI LL HOMES .
CO MMUN I T I FS or DI ST I N C TI O N
60 senior affordable apartments directly above the Market Hall, and 183 homes designed with
the young professional or couple in mind. The floor plans are as diverse as the people that will
live here, with a range of square footages and creative design. Focus has been given to what
each generation wants on the inside of their homes, such as gourmet kitchens for move down
buyers who love to entertain and media spaces and offices for the young professionals.
Exteriors have also been carefully designed to include elements that are both contemporary
while remaining true to the agrarian roots of the property. Finishes such as wood trim,
corrugated metal, and barn doors compliment grand windows and terraces. Finally, products
are parked in either podium-garages (Move Down and Senior) or private garages (Young
Professional) to meet the Specific Plan parking requirements.
Move Down Condominiums: 88 condominiums ranging in size from approximately
1,300 to 2,200 net square feet have been designed with the move-down Los Gatos
resident in mind . This buyer may have a much larger home that they no longer want to
maintain and are ready to move into a full-service condominium while retaining their
Los Gatos address. Semi-private elevators provide access to the units, providing secure
and exclusive access to residents who are accustomed to an estate lifestyle. Concierge
services enables the owner to travel without any worries about security or maintenance
surprises. A resort-style pool, work out facility, and lounge area offers a place to relax,
work-out and mingle with neighbors. Interior space boasts gracious entries, great
rooms for entertaining, and luxurious master suites and retreats. Large private terraces
are accessed from each unit and compliment the indoor-outdoor lifestyle.
Senior Affordable Apartments: A community's senior residents are often unable to
maintain their long time residences within a community and they must move into a
home designed to fit their needs and budget. Unfortunately, the ability of these
residents to stay within the community they know and love can be very difficult. The
senior affordable apartments proposed with this plan will provide this opportunity, with
elevator access and direct proximity to the neighborhood serving retail in the Transition
district. Accessibility will be provided by elevators and drive up parking, and the
community garden on the plaza will provide an opportunity to grow food and get to
know your neighbors. Easy walkability to goods and services complete the ease of what
could otherwise be a difficult transition . While 54 units are required to fulfil the Town's
BMP program requirements, 60 affordable senior units are proposed (10% more BMPs
than are required for the project). Additional information on the senior affordable
apartments and Eden's extensive experience in programming this product type is
attached in the BMP program details.
~!
GROSVENOR
«An
EDEN
HOUSING
SUMMERHILL HOME S.
CO~IM UN ITI ES OF DISTIN CTI O N
Young-Professional Residences: 183 homes and flats in three product designs are
proposed with the young professional in mind. Averaging 1.89 bedrooms and
approximately 1,500 square feet, these homes offer a place that the next generation of
young Los Gatans will want to live. The Draft Specific Plan requires 15% of the units to
be two story; however, this plan far exceeds this requirement with over 25% of the
homes having two-story elements. A range of product types include the Garden Cluster,
Rowhome, and Courtyard Cluster Homes . Nineteen floor plans provide this buyer with
the options and variety that they desire. Media rooms, home offices, open floor plans,
loft living, and large screen walls for gaming and movie watching offer a work at home,
play at home lifestyle. Bedrooms on separated levels provide for roommate
opportunities, home offices, or space for visitors. Contemporary finishes such as open-
tread stairs, concrete countertops, and large windows provide bright, current, and
comfortable living. Exterior spaces range from intimate living-level open spaces (which
are fenced for a dog) to gracious terraces and second story porches. These private open
spaces feed off the main living area to allow for additional space to hang out and relax
with friends.
Retail/Commercial Program:
This application establishes the retail component of the Transition Di strict which is intended to
be the community hub of the new North 40 neighborhood. The neighborhood serving retail will
become a place to draw this part of Los Gatos together to integrate the new North 40
community into its surroundings. It features a mi x of community focu se d retail which is
anchored by the Market Hall, an approximately 18,000 square feet hall that will feature artisan
foods and products. The remaining 48,000 square feet of commercial space will include
personal services, soft goods, and restaurants/cafes.
The transition district retail hub provides a common amenity for the residents of the new
neighborhood . Millennial's and empty-nesters are beginn ing to exhibit a similar taste in living
environments-living near cafes, restaurant s, and every day personal service needs. While they
may not desire similar home styles, they do share the desire to interact with neighbors and
friends.
The Transition District works as a stand-alone retail program but is intended to be integrated in
the larger hybrid-retail program that is currently envisioned in the Specific Plan. Thi s retail hub
has been de sig ned in a way that allows it to seamlessly plug into future development in the
Northern District. The program hopes to elevate the quality and design of retail offering s along
Los Gatos Boulevard while complementing recently completed developments in close
(~
GROSVENOR
rrAi
EDEN
H OU SING
SUMMERHILL HOME S-
C O MMUNITIES OF DISTINCTI ON
proximity. The transformation of this stretch of Los Gatos Boulevard will improve the quality of
the experience of driving along the boulevard while also increasing property values in the areas .
Exceptions:
The vast majority of the proposa l adheres to or exceeds the requireme nts of the Draft Specific
Plan, including open space pe rcentages, two-story requirements. Limited exceptions are being
requested ba se d on exceptional product design and offerings and the proposal meeting or
exceeding the Draft Specific Plan 's Vision Statement and Guiding Principles.
Height Measurement: The Draft Specific Plan's policy is to measure massing from
existing grade, which works well for smaller individual development parcels. Page 2-28
in Section 2.7 .4 states: "d. Maximum building height shall be determined by the plumb
vertical distance from the natural or finished grade, whichever is lower and creates a
lower profile, to the uppermost point of the roof edge, wall, parapet, mansard, or other
point directly above that grade. For portions of a structure located directly above a
cellar, the height measurement for that portion of that structure shall be measured as
the plumb vertical distance from the existing natural grade to the uppermost point of the
structure directly over that point in the existing natural grade." The size of the North 40
requires a mass-grading operation for drainage and cut-fill balancing. Onc e the site is
balanced, areas within the proj ect may be higher or lower than existing grade, which
makes measuring from "na tural" grade an exercise that would require buildings to be
designed for each area of grade on the property. After the si te is balanced, it is
anticipated that the site will average approximately 1.5' higher than existing grade;
however, there is also ge nerally a drop from Los Gatos Boulevard to the interior of the
site ( in some places as much as 10'). Therefore, even a structure that is 35' will read as
being much shorter from Lo s Gatos Boulevard . In order to achieve a variety of roof
pitches, to balance the earthwork for the site (and therefore minimize off-hauling and
Green House Ga s emissions during construction), and to achieve cross-drainage, it i s
reque sted that height be measured from the finished grade of the balanced si te.
Product Height Exception -Conditional Use Permit for the Move-Down
Condominiums:
To respond to the Draft Specific Plan's goal of providing a diverse selection of hou sing
types to se rve the Town s unmet need s, the Move Down condominium home s are
designed with practica l yet luxuriou s one-level living in mind . Semi-private elevator
banks and secured underground parking will attract an empty-nester buyer who expects
high-end resort-style living and amenities . The Move Down condominiums are located
~_;I
GROSVENOR
rAl
EDEN
HOU SING
SUM1\1ER HIL L HOMES -
C 0 ~lo\\ l J N IT I ES 0 F 11 I ST IN C TI 0 I\!
above ground-floor retail, which has an expected floor to ceiling height of lS'. To
achieve a luxurious feel in interior spaces, generous floor to ceiling heights of up to 10'
are proposed for the residential units. These gracious interior clear ceiling heights are
necessary to provide an elegant and exceptional condominium home for the discerning
Los Gatan move-down buyer.
The Draft Specific Plan references on Page 2-28 Section 2 .7.4 the following : " ... b.
Transition District -The maximum height for a residential use in the Transition District is
35 feet. An increased height up to 45 feet is allowed in the Transition District if the
project provides an additional green open space per Open Space Standards in Section
2 .5.3 or is an affordable housing development. Additional height may be granted within
the Transition District upon approval of a Conditional Use Permit by the Planning
Commission. c. Locate buildings greater than 35 feet in height in areas where the
existing natural grade is lower than Los Gatos Boulevard .... e. Limited towers, spires,
elevator and mechanical penthouses, cupolas, roof pitches of 8 :12 or greater (either
habitable or non-habitable), up to 30% the length of parapet on any given facade,
wireless telecommunication antennas, similar structures and necessary mechanical
appurtenances and associated screening which are not used for human activity or
storage may be higher than the maximum height permitted. All height exceptions
described above shall be subject to Architecture and Site Review and approval and must
be found consistent with the following findings: i. The building massing and dimensional
ratios of building components create a harmonious visual balance and contribute to the
architectural rhythm. ii. The height increase is necessary to achieve excellence in
architectural design and cannot be accommodated through alternative means such as
lowering the building into the ground or reducing overall floor to ceiling heights. iii.
Framed views of the hillside ridgeline shall be protected by locating buildings to provide
view corridors at key locations. These view corridors should be strategically located
within the neighborhood within common areas such as a park, plaza or specific location
on a primary street corridor."
The combination of the gracious retail and residential heights result in an overall
building height of between 42' -4S' for the three-story elements of the buildings and
S2' -SS ' for the limited four-story elements. An additional S% open space in this area
has been provided for the additional height requested between 3S' and 4S' for the 3
and 4 story elements of the buildings that exceeded 3S'. For the limited amount of
building elements that exceed 45', the Draft Specific Plan calls for a Conditional Use
Permit which is being applied for with this application. In keeping with the intent of the
Draft Specific Plan , this increased height request is occurring in the middle and lower
~
GROSVENOR
~
EDEN
H OU SIN G
SUMMER HI LL HOMES -
COM MUNITIFS OF f)ISTINCTION
grade region of the site, close to the freeway. This places the increased height in an
appropriate place on the site, allowing for the massing of the project to build up from 1
and 2-story buildings along Lark and Los Gatos Boulevard to these taller buildings in the
middle of the site. Finally, view corridors are emphasized and available in numerous
locations throughout the site plan. Please see Sheet 1.5 which references the limited
areas of included in the Conditional Use Permit as well as the proposed view corridors .
Product Height Exception -Conditional Use Permit for the Senior Affordable Rental
Housing:
The senior affordable housing is proposed at the Heart of the District, above the Market
Hall. This location provides a central location to goods and services for future residents
to enjoy. Because of the plate height of the Market Hall, the overall height of this
building is proposed between 45 ' -48', with only limited areas of the building exceeding
45'. The Draft Specific Plan specifies that for affordable units, "An increased height up
to 45 feet is allowed in the Transition District if the project provides an additional green
open space per Open Space Standards in Section 2.5.3 or is an affordable housing
development. Additional height may be granted within the Transition District upon
approval of a Conditional Use Permit by the Planning Commission ." (Page 2-28 Section
2.7.4) A Conditional Use Permit is being applied for as a part of this application to
increase the height from 45' to 48' for limited areas of the Senior Affordable building
(See Sheet 1.5). Similar to the Move Down location, the location of this height
exception occurs in the middle of the site, allowing for a gradually increasing height
transition from Lark and Los Gatos Boulevard. In addition to the convenient location
adjacent to neighborhood serving goods and services, the senior affordable housing will
offer Eden Housing's exemplary on-site resident services and the appropriate spaces to
offer these services such as a plaza-level community garden, a community room, a
computer center and a library or exercise room. For more detailed information on the
Below Market Product, please see attached additional information specific to the BMP
program.
Below Market Product: 60 Senior Affordable Apartments are proposed to satisfy the
Town's affordable housing requirement . While these homes are all within one structure
(rather than being dispersed through the application site area) they are in very close
proximity to the high end move down condominium program and strategically located
at the center of all community activity-Market Hall. Grosvenor and Eden Housing feel
strongly that affordable housing and high-end housing can and should co-exist in close
proximity to each another. Mixed-income neighborhoods are more sustainable and we
believe that what is proposed is a model for long term success . In addition, the goal was
f);
GROSVENOR
rrAl
EDEN
HOUSING
SUMMER H ILL 1-iOMES -
C 0 ~\ "1 UN I T I F S 0 f I) I ST I NC T I 0 N
to develop a BMP program that continues to target unmet needs within the Town while
achieving maximum affordability for Lo s Gatan seniors. The proposed location allows
for immediate access to new services, and centrally locates the residents within the new
community. For more detailed information on the Below Market Product, please see
attached additional information specific to the BMP program.
Senior Affordable Parking Exception:
The parking ratio proposed for the senior affordable apartments is 0.5 spaces/unit.
While the Draft Specific Plan Residential Off-Street Parking Space Requirement (Page 2-
15, Table 2-1) notes 0 .5 spaces+ .5 guest spaces for a Senior or Affordable Hous i ng Unit.
Because these are all sen ior one-bedroom units, the amount of parking necessary is far
l ess than a traditional affordable project with multiple bedrooms targeted towards a
family renter. Additionally, studies consistently show that people with lower incomes
typically own fewer cars than their higher income counterparts . Finally, for those seniors
who do own cars at move-in it is common that over time these indiv i duals drive le ss as
they grow older and eventually sell their car . Eden Housing ha s great experience in
building this type of product and consistently builds senior housing w ith parking ratios
at or below 0.5 spaces/unit. Many of the cities in which Eden provides Affordable
Senior Housing require only 0.5 spaces/unit for this product type.
Conclusion:
Th e Phase I North 40 application has thoughtfully applied the North 40 Dra ft Specific Plan's
Vision Statement and Guiding Principles in its des ign. The North 40 proposes a new community
that celebrates the Los Gatos lifestyle. The commercial/retail component provides much
needed restaurant and retail offerings to the new neighborhood and surrounding community
on the North End of Lo s Gatos, f eaturing goods and service s that are appealing for Millennia l s
and empty nesters. Th e resi dential program feeds off of this common community amenity with
a mix of housing styles that target young adults, empty nesters and seniors with f urther
affordability needs. Fin a lly, tying all of these components together, the carefully designed
open space and public realm have been in spired by the agrarian roots of the site and th e Town
of Lo s Gatos.
~
GROSVENOR
~
EDEN
HOUSI NG
SUMMERHIL L HOMES -
CO MMlJNI T IFS OF DllT I N C TION
g 0 Id far b 1300 Cloy Street, Ele venth Floor
I i pm a n Oakland, Califo rn ia 94 612
attorneys s1oa36-6336
M Dav id Kroot August 22, 2016
Lynn Hutc hins by e-mail
Koren M. Tiedemann
Thomas H . Webber
Dionne Jackson Mcleon
Michelle D. Brewer
Jennifer K. Bel l
Robert C. Mills
Laurel Prevetti, Town Manager
Town of Los Gatos
110 East Main Street
Los Gatos, CA 95030
Isobel L. Brown Re: Issues Raised at August 16, 2016 Town Council Meeting -North Forty
Jomes T. Diamond , Jr.
Margaret F. Jung
Heather J. Gould
William F. DiComillo
Amy DeVoudreuil
Barbaro E. Koutz
Erica Williams Orchorlon
Luis A. Ro driguez
Rafael Yoqui6n
Celia W. Lee
Dolores Bast io n Do lton
Joshua J. Mason
Vi ncent L. Brown
L. Katrine She lton
Caroline Nosello
Eric S. Phillips
El izabet h Kluec k
Doniel S. Maroon
Justin D. Bigelow
Son Francisco
415 788-6336
Los Angeles
2 13 627 -6336
Son Diego
619 239-6336
Goldfarb & Li pman LLP
Dear Town Manager Prevetti:
This letter i s written on behalf of Grosvenor USA Limited and Summerhill Homes
(collectively, the "Applicants") in relation to Architec ture and Site Application S-13-
090 and Vesting Tentative Map M-13-014 (collectively the "Planning Applications")
for 320 residences and 66 ,000 gross sq. ft. of neighborhood commercial space located in
the North Forty Specific Plan area (the "Project"). This letter responds to issues raised
at the August 16, 2016 Town Council meeting regarding the Project. In particular, we
are responding to email correspondence from Peter Dominick dated July 13 and August
8, 2016; and to correspondence from Angelia Doerner dated August 9, August 10, and
August 15, 2016. Ms. Doerner's August 9 correspondence included a presentation
regarding grading presented by Jeff Eisenbaum. While we have previously provided
correspondence to the Town regarding these issues, this . letter conso lidates those
respon ses for the Town's convenience. The majority of these comments concern the
Project's conformance with state density bonus law (Government Code §§ 659 15-
65918; "Density Bonus Law.")
A detailed legal analysis is attached. To summari ze the conclusions of th at analysis:
1. The Project is eligible for the 35 percent affordable housing bonus because over
11 percent of the units will be available at affordable rent to very low income
households. Occupants of the senior units will be very low income household s.
(See pages 3-4 below.)
2 . The Town cannot require the Applicants to calculate their density bonus based
on the senior housing bonus that applies to market-rate senior housing. (See
page 4 below.)
3. The density bonus was properly calculated over a base density of 237 units. (See
pages 4-5 below.)
1588\0 3\1946463.3
812312 016
August 22, 2016
Page2
4. The number of applicants submitting one application for a housing development
is irrelevant to the calculation of a density bonus. (See pages 5-6 below.)
5. The Project is exempt from any replacement housing obligations because the
application for the Project was submitted before January 1, 2015. (See pages 6-7
below.)
6 . Even though the replacement housing obligations are not applicable to the
Project, it in fact complies with the replacement housing obligations contained
in Government Code Section 65915(c)(3). (See pages 7-10 below.)
7. No modifications to the Town's BMP Guidelines are requested as waivers under
Density Bonus Law. The Applicants were informed by the Town Attorney and
Town staff that its BMP proposal is consistent with the BMP Guidelines because
strict conformance would be infeasible or unreasonable, and the BMP
Guidelines themselves do not require strict conformance where that is the case.
The Guidelines are not valid to the extent that they are inconsistent with State
law. (See pages 10-12 below.)
8. There is no evidence in the record that would justify the denial of the requested
waivers. (See pages 12-15 below.)
In conclusion, the Project is eligible for the density bonus and waivers requested. Once
the Project is eligible for the density bonus, there are no grounds for denying the bonus.
No information is contained in the record that would allow the waiver to be denied.
Hence, the Town must approve the density bonus and the proposed waivers.
~
BARBARA E. KAUTZ
Attachments:
l . Project description dated April 30, 2014 and submitted to Town on May 12, 2014
2. AB 2556
cc: Rob Schultz, Town Attorney
Joel Paulson, Community Development Director
I 588\03\1946463.3
8/23/2016
August 22, 2016
Page 3
LEGAL ANALYSIS
Issues Raised by Peter Dominick
By letter dated July 29, 2016 we previously responded to Mr. Dominick's email of July
13, 2016. Mr. Dominick has reiterated and expanded upon those issues by email dated
August 8, 2016. The issues raised include the following:
Comment #1 and Comment #2 (second part): The senior affordable housing is not
intended for very low income households, which include "persons and families " of very
low income (Health & Safety Code §50105(a)), because the senior units will be age-
restricted. For housing to be entitled to a density bonus as very low income housing, it
cannot be age-restricted. As a consequence, the Project is not entitled to a density bonus
for very low income housing. Any bonus must be calculated based only on the number
of senior housing units.
Response: Eligibility for Affordable Housing Bonus. The Project is eligible for the 35
percent affordable housing bonus because over 11 percent of the units will be available
at affordable rent to very low income households.
A housing development is entitled to a density bonus when the applicant agrees to
construct at least "[ f]ive percent of the total units ... for very low income households, as
defined in Section 50105 of the Health and Safety Code." (Gov't Code
§65915(b)(l)B).) If a development meets this criterion, the percentage density bonus is
increased to 35 percent for projects containing at least 11 percent very low income
units. (Gov't Code §65915(f)(2).) "Very low income households" means "persons and
families whose incomes do not exceed the qualifying limits for very low income
families .... " (Health & Safety Code §50105(a).) "Total units'' does not include any
units added by a density bonus. (Gov't Code §65915(b)(3).)
Senior households include both "persons" (single or unrelated persons) and "families"
(related persons). The Applicants have committed to the Town that the seniors who will
reside in the proposed 49 unils of very low income housing will be "persons and
families" with very low incomes and so, by definition, will be "very low income
households." Because over 11 percent of the total units in the Project are intended for
"very low income households," the Project is entitled to a 35 percent density bonus.
Nothing in Density Bonus Law or in Health & Safety Code §50105 requires that
affordable units be available to applicants based solely on income, as is contended by
Mr. Dominick; the only requirement is that the affordable units be available to "very
low income households." In Wollmer v. City of Berkeley ((2011) 193 Cal. App. 4th
1329, 1341, 1344-46), the Court of Appeal reviewed and approved a bonus of 30 .7
1588\03\1946463 .3
8/23/2016
August 22, 2016
Page4
percent for a senior affordable housing project. The bonus was ba sed on the project's
status as an affordable senior project, not on its status as a senior project.
As the courts have explained, Density Bonus Law "reward[s] a developer who agrees to
build a certain percentage of low-income housing with the opportunity to build more
residences than would otherwise be permitted by the applicable local regulations."
(Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal. App. 4111 807, 824
[citation omitted].) Failing to provide a bonus for affordable senior units would conflict
with the primary purpose of Density Bonus Law, which is to provide incentives that-will
"contribute significantly to the economic feasibility of lower income housing." (Gov't
Code §65917.)
Applicability of Senior Density Bonus. The Town cannot require the Applicants to
calculate their density bonus based on the senior housing bonus that applies to market-
rate senior housing.
Density Bonus Law provides density bonuses based on the percentage of very low, low,
or moderate income housing contained in the development and separately provides a
bonus for a "senior housing development." (Gov 't Code §65915(b)(l)(C).) If a project
elects to claim the senior housing bonus, there is no requirement that any of the units be
affordable. Because this bonus may be claimed by even a luxury market-rate senior
project , the bonus is limited to 20 percent and is calculated over the number of unit s in
the senior housing development only. (Gov't Code §65915(f)(3).)
Density Bonus Law provides that the applicant shall elect whether the bonus will be
based on the percentage of affordable units or on the number of senior units . The only
limitation is that the ·applicant cannot claim both bonuses . (Gov't Code §65915(b)(2).)
In this case, the Applicants have elected to calculate the bonus based on the status of the
Project as a housing development containing 11 percent of the total units for very low
income households. The Town has no authority to require the Applicants to calculate
the bonus based only on the number of senior units.
Comment #2 (first part): The density bonus should be calculated over a base density of
223 units, rather than a base density of 237 units, because 237 units cannot be obtained
without a waiver of some height requirements.
Response: The density bonus was properly calculated over a base density of 237 units.
The definition of a "density bonus" is:
"A density increase over the otherwise maximum allowable residential density
as of the date of application by the applicant to the city ." (Gov't Code
§65915(f).) (emphasis added.)
1588\03\1946463 .3
812312016
August 22, 2016
Page 5
"Maximum allowable residential density" (or base density) is defined as:
"[T]he density allowed under the zoning ordinance and land use element of the
general plan, or, if a range of density is pe rmitted, means the maximum
allowable density for the specific zoning range and land use element of the
general plan applicable to the project. Where the density allowed under the
zoning ordinance is inconsistent with the density allowed under the land use
element of the general plan, the general plan density shall prevail." (Gov't Code
§65915(0)(2).)
Once base density is known, the maximum allowe d bonus is "calculated," according to
the tables included in Section 65915(£), by multiplying that base dens ity by the
appropriate percentage in that section. For a project with 11 percent or more very low
income units, the maximum bonus is obtained by multiplying the "maximum allowable
residential density" by 3 5 percent.
Both the Town's land use element of the general plan, as amended by the Town Council
on June 17, 2015, and the Specific Plan, which acts as the zoning for the site, state that
the maximum capacity of the North Forty site is 270 units . There are approximately 17-
19 existing units within the North Forty that are not included in the Project.
Consequently, the Applicants could have claimed 251-253 units as the base density and
proposed a project of 339-342 units with the maximum 35 percent density bonus . The
proposed project with a base density of 237 units is smaller than allowed by state law,
not larger.
Comment #3: The project does not qualify for a density bonus because there is more
than one applicant.
Response : The number of applicants submitting one application for a housing
development is irrelevant to the calculation of a density bonus.
A density bonus is provided for a "housing development." (Gov't Code §§65915(a),
(b)(l), (f).) The definition of "housing development" contained in the density bonus
statute states that:
" 'Housing development,' as used in this section, means a development project
for five or more residential units ... For the purpose of calculating a density
bonus, the residential units shall be on contiguous sites that are the subject of
one development application, but do not have to be based upon individual
subdivision maps or parcels. The density bonus shall be permitted in geographic
areas of the housing development other than the areas where the units for lower
income households are located." (Section 65915(i).)
1588\03\194646 3 .3
8123120 16
August 22, 2016
Page 6
The Project is a development project for more than five residential units . The Project
includes residential units located on contiguous sites that are the subject of one
development application. Only one tentative subdivision map has been submitted for the
entire Project. As required by this section, the bonus has been calculated by including
all of the residential units that are the subject of the same development application. The
fact that the single development application is submitted by more than one entity, who
are together the "applicant," is irrelevant in calculating the density bonus.
Issues Raised by Angelia Doerner
Comment No . 1: The replacement housing obligations contained in Government Code
Section 65915(c)(3) are applicable to the Project.
Response: The Project is exempt from any replacement housing obligations because the
application for the Project was submitted before January 1, 2015.
The relevant provision of Density Bonus Law states:
"Paragraph (3) of subdivision (c) [the replacement housing provision] does not
apply to an applicant seeking a density bonus for a proposed housing
development if his or her application was submitted to , or processed by, a city.
county, or city and county before January 1, 2015."
There is no doubt that the application for the Project was submitted to, and processed
by, the Town before January 1, 2015. The applicants submitted Architecture and Site
Application S-13-090 and Vesting Tentative Map M-13-014 to the Town on November
14, 2013. The Town then commenced processing the application, requesting more
information to complete the application on December 18, 2013 . The applicants
continued revising the application in response to staff comments and changes in the
Specific Plan until the application was deemed complete in spring 2016. While changes
were made to comply with the Specific Plan adopted in June 2015, the Project now
deemed complete was substantially similar to that originally submitted: 320 units v. 335
units originally submitted; 50 affordable senior units v. 60 units originally submitted;
and unchanged 66,000 sf of commercial space. The density of the project has never
increased from that submitted in 2013 -in fact the density has decreased. As early as
April 2014, the Project description submitted to the Town contained requests for height
exceptions that are very similar to the waiver requests now proposed. (See attached
project description.)
Although the Town reviewed the density bonus and waiver requests in detail , it never
requested information regarding the existing units on the site, in apparent agreement
that the replacement housing obligation is not applicable to the Project. For instance , the
Town asked for additional information regarding the senior units by letter dated
November 11, 2015 and in March 2016 requested additional justification for the
1588\03\1946463.3
8/23nOI6
August 22, 2016 ·
Page 7
requested waivers. The Town deemed the Project 'complete' after requesting no
information about the existing units.
However, it has been asserted that the relevant date for determining whether a project is
subject to the replacement housing provision is the date that a formal request for a
density bonus was submitted, not the date that the application for the Project was
submitted.
This is not correct. The relevant date is the date the application for the Project was
submitted . The statute uses two different terms, "applic ant" and "seeking," which are
significant for understanding whether the term "application" refers to the application for
the Project or the application for the density bonus. When th e Applicants first submitted
the application for the Project, they became an "applicant" within the meaning of the
statute. The term "application" therefore is better interpreted as referring to the date of
the initial application for the Project (at which time the Applicants became an
"applicant" within the meaning of the statute); after which, the Applicants "sought"
("the applicant seeking") a density bonus.
In summary, the Project is not subject to the rep lacement housing provisions contained
in Government Code Section 65915(c)(3) because the app lication fo_r the Project was
submitted before January 1, 2015.
Comment No. 2: The Project does not comply with the replacement housing obligations
contained in Government Code Section 65915(c)(3).
Response: Although the replacement housing obligations are not applicable to the
Project, it in fact complie s with the replacement housing obligations contained in
Government Code Section 65915(c)(3).
The replacement housing requirements relevant to the Project and co nt ained in Den s ity
Bonus Law prov~de as follows:
(A) An applicant shall be ineligible for a density bonus or any other incentives
or concessions under this section if the housing development is proposed on any
property that includes a parcel or parcels on which rental dwelling units are or, if
the dwelling units have been vacated or demolished in the five-year period
preceding the application, have been ... occupied by lower or very low income
households, unless the proposed housing development replaces those units, and
either of the following applies:
(i) The proposed hou sing development, inclusive of the units rep laced pursuant
to this paragraph, contains affordable units at the percentages set forth in
subdivision (b).
1588\03\1946463.3
8().3/20 16
August 22, 2016
Page 8
(ii) Each unit in the development, exclusive of a manager's unit or units, 1s
affordable to, and occupied by, either a lower or very low income household.
(B) For the purposes of this paragraph, "replace" shall rnean ... the following:
(i) If any dwelling units described in subparagraph (A) are occupied on the date
of application, the proposed housing development shall provide at least the same
number of units of equivalent size or type, or both, to be made available at
affordable rent or affordable housing cost to, and occupied by, persons and
families in the same or lower income category as those households in
occupancy. For unoccupied dwelling units described in subparagraph (A) in a
development with occupied units, the proposed housing development shall
provide units of equivalent size or type, or both, to be made available at
affordable rent or affordable housing cost to, and occupied by, persons and
families in the same or lower income category in the same proportion of
affordability as the occupied units . All replacement calculations resulting in
fractional units shall be rounded up to the next whole number. If the replacement
units will be rental dwelling units, these units shall be subject to a recorded
affordability restriction for at least 5 5 years. If the proposed development is for -
sale units, the units replaced shall be subject to paragraph (2). (§ 65915(c)(3).)
If a project is subject to this provision, it must:
1. Determine the number of rental units occupied by low and very low income
households and apply the same proportion of low-income tenants to any vacant
units. (The statute does not apply to owner-occupied housing.)
2. Include the same number of replacement units of "equivalent size or type, or
both," to be occupied by persons and families in the same or lower income
category as those households in occupancy . If the replacement units are rentals,
they must be made available at affordable rent for 55 years.
3. Verify that enough affordable units are provided in the project, including any
replacement units, to qualify the project for a density bonus.
All Rental Units Replaced. The Project contains more than twice as many affordable
units as required to replace all of the rental units existing on the site .
The Applicants have completed a recent survey and determined that there are 20 units
on the site. One has been used for storage for over 10 years and therefore is not subject
to any replacement housing requirements. A second unit was owner-occupied before
being purchased by the Applicants and has not been leased since. This leaves 18 units
that may have been available for rent in the last five years.
1588\03\1946463 .3
8/23/2016
August 22, 2016
Page 9
Even if every potential rental unit is occupied by a very low income person, the Project
contains many more units to be occupied by "persons and families" in the same or lower
income category than required to meet any replacement housing obligation. While there
are 18 potential rental units existing on the site, the Project will provide 49 units that
will be occupied by "persons and families" in the very low income category, over twice
as many units as exist today. As discussed in the response to Comments #1 and #2
above, residents of senior housing are "persons and families." There is no requirement
that the replacement housing be available to all ages.
There is also no requirement that the replacement units be provided in addition to the
units otherwise required to qualify the Project for a densi ty bonus or required by the
Town's BMP program.
Under Density Bonus Law, any required replacement units are not added to the 27 units
required for the Project to obtain the maximum 35 percent density bonus. The statute
(§65915(c)(3)(A)(i)) provides that a development remains eligible for a density bonus
if, "inclusive of the units being replaced, [it] contains affordable units at the percentages
set forth in in subdivision (b)." (Subdivision (b) sets forth the percentages required to
obtain a density bonus.) The provision of only 27 very low income units would both
satisfy the replacement housing requirements and entitle the Project to a 35 percent
density bonus.
The Town's BMP Guidelines do not include a replacement housing requirement and do
not provide that any replacement requirement is added to the units otherwise required
by the BMP program.
"Equivalent" Size or Type. The affordable units are of "equivalent" size and type .
Density Bonus Law as currently adopted provides no guidance as to the meaning of
"equivalent size or type." Currently before the State Senate is AB2556, a 'clean up' bill
to clarify the replacement housing provisions (see attached copy). The bill provides that
" 'equivalent size' means that the replacement units contain at least the same total
number of bedrooms as the units being replaced."
The affordable senior units contained in the Project meet the standard in AB2556: they
provide more total bedrooms than do the existing 18 potential rental units: 49 bedrooms
will be provided, while 39 exist. The senior units also substantially exceed the aggregate
size of the 18 potential rental units . The senior affordable units themselves (not
including corridors, community rooms, or other space included in the building but not
included in individual units) total 28,520 st: while the existing units total 17, 102 sf. The
senior units substantially exceed the size of the existing units.
1588\03\1946463.3
8/23/20 16
August 22, 2016
Page 10
In conclusion, although the replacement housing provisions are not applicable to the
Project, the Project in fact provides replacement affordable housing conforming to
Density Bonus Law even if it is assumed that all of the rental units are occupied by
lower income households.
Comment No. 3: The proposed "waivers" to the Town's BMP Guidelines are not
justified under Density Bonus Law.
Response: No modifications to the Town's BMP Guidelines are requested as waivers
under Density Bonus Law. The Applicants were informed by the Town Attorney and
Town staff that its BMP proposal is consistent with the BMP Guidelines because strict
conformance would be infeasible or unreasonable, and the BMP Guidelines themselves
do not require strict conformance where that is the case. The Guidelines are not valid to
the extent that they are inconsistent with State law.
The proposed BMP program was described in our letter of October 21, 2015 and
attached BMP program. We repeat and amplify that discussion here.
• Type of Units, Rental vs For-Sale: The BMP Program requires that the "BMP units
within a project that contains both rental and owner-occupied units shall also be
designated as both rental and as units for purchase, in a ratio similar to that of the
market-rate units." The affordable units in the Project consist of rental housing
rather than a mix of for-sale units and rentals.
Justification: The Town's requirement that BMP units in for-sale projects must also
be for-sale units is invalid because it conflicts with State law. Under a provision of
State housing element law, the Town cannot require that the Project provide for-sale
BMP units rather than rental BMP units. Rather, Government Code Section 65589.8
provides that if a local government adopts a requirement in its housing element that
developments contain a percentage of affordable units, as Los Gatos has done, the
local government shall permit a developer to satisfy that requirement by
constructing rental housing at affordable monthly rents. This is precisely what is
being proposed here: The Town requires that new developments contain a
percentage of affordable units, and the developer proposes to satisfy the Town's
BMP requirements by constructing rental housing at affordable monthly rents. The
Project is therefore entitled to use rental affordable units to satisfy the BMP
Program's requirement that 20 percent of units be affordable .
A requirement that the senior affordable units be offered for sale would also make
the project infeasible because of its proposed tax credit financing, which will not
fund for-sale units. State law does not allow a condition to be imposed that renders a
project infeasible because of its method of financing. (Gov't Code Sections
65008(b )(2), (b )(3 ). )
1588\03 \1946463.3
8123/2016
August 22, 2016
Page 11
• Location of Units: The BMP Program requires that the "BMP units shall be
dispersed throughout the development, to the extent feasible, in all buildings, on
each floor, and in each project phase." (emphasis added) In this case , the Project
includes a single affordable senior housing component which is located on the air
rights above the Market Hall. The Town's requirement would make senior housing
infeasible and would physically preclude its development.
Justification. The affordable units in the development are proposed as senior
housing . Under State law, for new housing to be limited to seniors, it must include
specific design features such as doors and hallways accessible by wheelchairs, grab
bars and railing for those who have difficulty walking, additional lightin g in
common areas , and access provided without the use of stairs, and must be designed
to encourage social contact by providing at least one common room and common
open space. (Civil Code§ Section 51.2(d)). All senior housing must have rules and
covenants clearly restricting occupancy consistent with federal and state occupancy
requirements and must verify occupancy by reliable surveys and affidavits. ( 42
U.S.C. § Section 3607(b)(2); Civil Code § 51.3(c).) The policies , procedures, and
marketing must demonstrate that the senior development as a whole is intended for
seniors. (54 Fed. Reg. 3255 (Jan. 23 , 1989)).
These requirements do not allow housing intended for seniors to be dispersed
throughout a development or to be integrated into other buildings in the
development. In a development that includes both senior and non-senior housing, as
is proposed here, the senior units must be clearly separated from non-senior
housing, preferably in a building where the residences are designed for seniors only,
with separate entrances and facilities .1 Clearly these requirements cannot be met if
the senior affordable units are dispersed throughout the development.
Consequently, requiring the affordable units to be dispersed throughout the
development in all buildings and on each floor would make the proposed affordable
senior housing infeasible, violate State and federal fair housing laws, and physically
preclude the development of the housing. Because the BMP Guideline s require
dispersion of the units only if feasible, the proposal conforms with the Guideline s.
(This modification was originally requested as a density bonus waiver. However, the
Applicants were informed by the Town Attorney and Town staff that the Guidelines
did not require dispersal of units where infeasible. As noted, dispersal would violate
fair housing laws .)
• Size of Units: The BMP Program requires that the "size and design of BMP
dwelling units shall be reasonably consistent with the market rate units in the
project." (emphasis added)
1 See Corporation for Supportive Housing, B etween the Lines: A Question and Answer Guide on Legal
Issues in Supportive Housing (2010 California Edition), at 45.
1588\03\19464 63 .3
8123/2016
August 22, 2016
Page 12
Justification. Because the proposed BMP units are designated for seniors, they are
necessarily smaller than the market-rate units; it would not be reasonable to expect
seniors to maintain units as large as the market-rate units , nor could units so large be
affordable to very low income households . The expected financing sources will not
provide subsidies large enough to support very low income senior units as large as
the market-rate units. As noted, State law does not allow a condition to be imposed
that renders a project infeasible because of its method of financing. (Gov't Code
Sections 65008(b)(2), (b)(3).) Considering the intended age of the occupants and
financing, the size of the BMP units is reasonably consistent with the market rate
units, and the proposal conforms with the Guidelines.
The exterior design of the affordable units is fully consistent with and integrated
into the design of the project as a whole and the Market Hall, in particular.
In conclusion, the proposed affordable housing does not require "waivers" from the
Town's BMP Guidelines. The Guidelines themselves allow modifications where their
requirements are not feasible or reasonable; and in any event they cannot be enforced to
the extent that they are inconsistent with State or federal law. Since strict compliance
would be inconsistent with state housing element law and with state and federal fair
housing laws and would make the financing infeasible, the proposal does not require
any waivers from the Guidelines.
Comment No . 4: The Project is not entitled to a density bonus for very low income
housing because the affordable units are limited to seniors.
Response: Please see detailed responses to Mr. Dominick's comments #1 and #2 above.
Comment No. 5: The proposed fill of one to five feet is not required; hence , the Project
does not require the requested height waiver, since the Project may be constructed
without fill on existing grade.
Response: There is no evidence in the record that would justify the denial of the
requested waivers. No evidence has been submitted demonstrating that the fill is not
required. At the Town Council meeting of August 11, 2016, the project engineer
provided extensive testimony explaining in detail the need for the project grading. The
Town's Public Works Director testified at the same meeting that he could not determine
if fill had been increased beyond that required to meet ADA and stormwater standards.
Similarly, no evidence has been submitted to demonstrate that the permitted density of
development can be achieved without the requested waivers, or that any of the required
findings for denial can be made. The Town must therefore grant the waivers.
Under Density Bonus Law, the Project would have been able to request unlimited
waivers of the Specific Plan's development standards including, but not limited to,
height, setback, open space, floor area ratio, lot area coverage, and parking. However,
1588\03\1946463 .3
8/23/2016
August 22, 2016
Page 13
as the Applicants testified on August 11, their goal in Project design was to maximize
compliance with the many objective standards in the Specific Plan. This was achieved
by providing the proposed one to five feet of fill. For instance, fill was required to
provide ADA-compliant access from the senior affordable building along Neighborhood
Street to the VT A bus stop on Los Gatos Boulevard.
The project team was very successful in meeting the Specific Plan standards, even with
a 35 percent density bonus. On this large and complicated project, wi th often conflicting
policies, the designers were able to obviate the need for all but two waivers. As
described in detail in our letter of October 14 , 2015 and expanded upon in our letters of
March 10 and March 25 , 2016, the team cannot achieve the den si ty of 320 units unless
waivers are granted to allow height to be measured from finish grade, rather than
existing grade; and to allow the elevator and roof pitch for the senior building.
Our letter of March 25, 2016, in particular, describes in some detail the limited leg al
basis for, denial of waivers. We repeat that discussion here .
As described in our March 10 letter, this limited fill is requ ired because of the need to
provide ADA accessibility, meet requirements for stormwater quality, provide adequate
flood control, balance cuts and fills to the extent feasible , and conform to existing
boundary conditions.
As a consequence, three-story units cannot be constructed in these areas of fill and meet
the 35-foot height limit if height is measured from existing grade (effectively reducing
the permitted height by 0.1 to 5 feet). A third story, even if measured from finish grade,
can barely be accommodated within the 35-foot height limit and is not possible if the
height is measured from existing grade. B ecause 75 p ercent of the units have three
stories, we estimate that 97 units will be lost if the heigh ts are reduced to two stories,
''physically precluding" a project with th e 320 units that the project is entitled to .
Conformance with the Specific Plan. Limiting most building heigh ts to two stories
would be inconsistent with the Specific Plan's design guide! ine s and re c1uir e jiirther
requests for waivers from those provisions. The Sp ecific Plan contemplates a mix oftwo
and three story reside nces in the North Forty. Specifically:
• Policy LUJO calls for a mix of residential product types.
• Section 2. 5. 2 (a)(ii) requires a minimum of I 5 p ercent of th e units to have two
stories, with most located in the Perimeter Ove rlay zone, but th is clearly
contemplates that most residences will have three stories.
• Section 2. 7.3 specifies that th e residential units shall range in size and states
that it should accommodate a mix of residential product types to create the
character of an authe ntic neighborhood. The illustrative example of unit size
1588\03\1946 463.3
8/2312 016
August 22, 2016
Page 14
mix included in the glossary shows units sizes rangingfi ·om l, 000 lo 2.350 sq . .fl.
for the market-rate units.
• Sections 3.3.6(b), (c) and (d) require a variety of building forms and variations
in height and roof shape. Section (h) discusses adding variety to second and
third floors.
• Many of the graphic examples provided of the desired building forms show
buildings of three stories or more with a height of at least 35 feet measured from
finish grade.
The project that has been submitted to the Town conforms with all of the detailed design
guidelines included in the Specific Plan but cannot provide the variety and types of
housing contemplated if the site cannot contain three-story buildings.
In Wollmer v. City of Berkeley (2011) 193 Cal.App.41h 1329, the City of Berkeley
granted waivers of development standards as part of a density bonus application. In
particular, Berkeley approved additional building height and reduced setbacks to
accommodate certain project amenities, including an interior courtyard, a community
plaza, 15-foot ceilings in the commercial space, and nine-foot ceilings in the residen ces.
Wollmer contended that Berkeley's usual development standards did not ''physically
preclude" construction of the project with the density bonus because no waiver would
be required if the developer removed all of the project amenities.
The Court rejected this argument, stating:
[N}othing in the statute requires the applicant to strip the project of amenities,
such as an interior courtyard, that would require a waiver of development
standards. Standards may be waived that physically preclude construction of a
housing development meeting the requirements for a density bonus, period. The
statute does not say that what must be precluded is a project with no amenities,
or that amenities may not be the reason a waiver is needed. Had the City failed
to grant the waiver and variances, such action would have had "the effect of
physically precluding the construction of a development" meeting the criteria of
density bonus law. Id at 1346-47.
The development proposed on the North Forty is requesting a waiver not to provide
additional amenities but merely to provide the design variety and types of housing
required by the Specific Plan. Failure to grant this waiver would have the effect of
''physically precluding" the development required by the Town's own Spec(fic Plan.
Grounds for Denial. A request for a waiver cannot be denied because <~l aeslheti<:
impacts. It may be denied only if it would be contrary to state or federal law , have an
adverse impact on property listed in the California Register of Historic Resources, or
1588\03 \ 1946463 .3
8123/2016
August 22, 2016
Page 15
have a "specific, adverse impact, as defined in [Government Code Section
65589.5(d)(2)}, upon health, safety or the physical environment." (G.C. Section
65915(e)(l).) Section 65589.5(d)(2) defines a "specific, adverse impact" as "a
significant, quantifiable, direct, and unavoidable impact, based on objective, identified
written public health or safety standards, policies, or conditions as they existed on the
date the application was deemed complete. Inconsistency with th e zoning ordinance or
general plan land use designation shall not constitute a specific, adverse impact upon
the public health or safety." An aesthetic impact is not based on ''public health or
safety" standards.
In conclusion, there is no evidence in the record that would allow the waivers to be
denied.
Conclusion.
The Project is eligible for the density bonus and waivers requested. Once the Project is
eligible for the density bonus , there are no grounds for denying the bonus. No
information is contained in the record that would allow the waiver to be denied. Hence,
the Town must approve the density bonus and the proposed waivers.
1588\03\1946463 .3
8/23/2016
-----Original Message----
From: Claudia Kenyon [mai lto:Icla udia(li.comcast.net]
Sent: Wednesday, August 24, 2016 9:55 AM
To: Council
Subject: the North 40
I just watched the tape of your last meeting. Whatever your decision , I can see that it won't be
arrived at lightly. Easy for us to sit back and say approve or deny according to our individual
preferences, but you have to consider the town as a whole -and - I am sorry to hear -to endure
bullying. I am going to restrain myself from giving my preference thi s time and just say, thank
you for your work and may you rest content with your decision and may we honor it without
mean remarks or actions.
Sincerely,
Claudia Kenyon
27 Cross Way
Los Gatos