Desk Item I with attachments 39-40PREPARED BY : JOEL PAULSON
Community Development Director
Reviewed by: N/A Assistant Town Manager Town Attorney Finance
C:\Users \slombardo \Downloads \Desk_Item_I.docx
MEETING DATE: 09/0 6 /16
ITEM NO. 5
DESK ITEM I
COUNCIL AGENDA REPORT
DATE: SEPTEMBER 6 , 2016
TO: MAYOR AND TOWN COUNCIL
FROM: LAUREL PREVETTI, TOWN MANAGER
SUBJECT: ARCHITECTURE AND SITE APPLICATION S -13 -0 90 AND VESTING
TENTATIVE MAP APPLICATION M -13 -0 14 . PROPERTY LOCATION:
SOUTHERLY PORTION OF THE NORTH 40 SPECIFI C PLAN AREA,
LARK AVENUE TO SOUTH OF NODDIN AVENUE . APPLICANT :
GROSVENOR USA LIMITE D . PROPERTY OWNER S : YUKI FARMS,
ETPH LP, GROSVENOR USA LIMITED, SUMMERHILL N40 LLC,
ELIZABETH K. DODSON, AND WILLIAM HIRSCHMAN.
CONSIDER A REQUEST FOR THE CONSTRUCTION OF A NEW MULTI -
USE, MULTI -STORY DEVELOPMENT CONSISTING OF 320
RESIDENTIAL UNITS, WHICH INCLUDES 50 AFFORDABLE SENIOR
UNITS; APPROXIMATELY 66,800 SQUARE FEET OF COMMERCIAL
FLOOR AREA, WHICH INCLUDES A MA RKET HALL; ON -SITE AND
OFF -SITE IMPROVEMENTS; AND A VESTING TENTATIVE MAP.
APNS: 424 -07 -024 THROUGH 027, 031 THROUGH 037, 070, 083
THROUGH 086, 090, AND 100.
RE MARKS :
Attachment 39 contains p ublic comment s received between 11:01 a.m. September 1 , 2016 and
11:00 a.m. September 6 , 2016 .
Attachment 40 contains a revised resolution making the required findings to document the
Town Council’s action taken on September 1, 2016 to deny the applications.
To assist the Town Council in the review of t he resolution, the motion to deny the applications
was based on the following reasons as stated in the motion made by Vice Mayor Sayoc and
seconded by Council Member Leonardis:
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: N. 40 PHASE 1 DEVELOPMENT APPLICATIONS/S -13 -090 and M -13 -014
SEPTEMBER 6 , 2016
RE MARKS (Cont ’d):
1. The residential components of the Planning Commission’s recommendation to the Town
Council to deny the application. (Though not articulated in the motion, these items
include:
o The project does not address the unmet needs for senior housing as noted in Section
2.4 and Appendix C of the Specific Plan.
o The units should be smalle r, typical of the examples cited on page 6 of the Planning
Commission Report for its July 12, 2016 meeting.
o The project does not comply with Policy DG6 Architecture particularly for buildings
24 and 25.
o The Specific Plan envisions lower intensity residenti al uses in the Lark District.)
2. Significant issues with the layout of the residential units and if there was an opportunity
to spread the units, we would have had a better comprehensive site plan. For example;
residential buildings 18 through 2 7 on Buildi ng Key Plan Sheet 1.0, surrounded by
South A Street , Los Gatos Boulevard, and Lark Avenue , are an anomaly due to the
existing commercial property on Los Gatos Boulevard (as clarified after discussion).
3. Site access on Specific Plan page 4 -2 and Commercial Design Guidelines on page 3 -2
guide the site plan development.
4. The ability to spread residential units gives better design. 270 units were allocated in the
Housing Element for all 40 acres of the North 40. 13.5 acres were not designated to the
southern Lark Dis trict , Transition District, or Northern District . This provides discretion
to the deciding body . This is how land us e decisions work in Los Gatos. When there is
ambiguity, the deciding body makes the determinations based on look and feel, site
layout, scale , mass, and neighborhood harmony. We should not be looking at this
project any differently.
5. With the intention o f applying the Specific Plan uniformly on all projects in the future,
this application disproportionately hurts the chances of a better site design in the future.
6. Housing Element planned for an income distribution of 156 very low, 84 low, and 30
moderate income households for North 40 site (added by the maker of the motion and
accepted by the seconder after discussion).
7. Reducing the size of the proposed units and locating the proposed units outside of the
Los Gatos School District boundaries are strategie s for reducing the cost of the proposed
units (added by the maker of the motion and accepted by the seconder after discussion).
The draft resolution contains the specific elements of the motion; however, the Council
discussion of the motion raised many ot her issues and facts which the Council may wish to add
to the final resolution. At the meeting on September 6, 2016, the Council should identify
which, if any, of the following items should be added:
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: N. 40 PHASE 1 DEVELOPMENT APPLICATIONS/S -13 -090 and M -13 -014
SEPTEMBER 6 , 2016
RE MARKS (Cont ’d):
A. The Council could consider adding the other elements o f the July 13, 2016 Planning
Commission motion that were not included in the Council motion . The Council motion
explicitly excluded the mention of the economic study, and focused only on the
“residential components” contained in the Resolution. Other non -economic study items
include:
i. The project does not incorporate views adequately in the layouts as called out in
Open Space Policy 01 View Preservation and does not comply with Design
Guideline s Section 3.2.1.d. Site Planning and Design which states “Natural
sunlight and views should be considered when siting buildings and landscaped
open spaces ,” and Section 3.2.6.e.i. Building Elements and Articulation which
states “Special care shall be taken to avoid obstructing views to the surround ing
hills.”
B. The Mayor’s two motions from August 16, 2016 and the bases for those motions.
C. The project is inconsistent with the Specific Plan as it fails to provide affordable housing
throughout the North 40 Specific Plan area.
D. Median price of a home in Santa Clara County $965,000.
E. The applications do not meet all of the needs that the public brought forth in its
testimony and correspondence.
F. The applications do not meet the requirements of Government Code Section 65915 for a
density bonus.
G. The applications do not meet the required definition of “mixed use development” under
Government Code Section 65 589.5.
H. The applications do not comply with Town Code Section 29.10.3000 et. sec. and the
Town’s Below Market Price Program.
I. The applications leave unanswered questions regarding future proposals in the Northern
District.
J. The applications do not fully improve Los Gatos Boulevard from Lark Avenue to
Samaritan Drive.
K. Charter Oaks intersection is dangerous and needs “keep clear” markings.
Attac hments (previously received under separate cover):
1. March 30, 2016 Planning Commission Staff Report (includes Exhibits 1 -21)
2. March 30, 2016 Planning Commission Addendum (includes Exhibits 22 -23)
PAGE 4
MAYOR AND TOWN COUNCIL
SUBJECT: N. 40 PHASE 1 DEVELOPMENT APPLICATIONS/S -13 -090 and M -13 -014
SEPTEMBER 6 , 2016
Attac hments (previously received under separate cover) (Cont ’d):
3. March 30, 2016 Planning Commission Desk Item (includes Exhibits 24 -25)
4. April 27, 2016 Planning Commission Staff Report (no exhibits for this report)
5. July 12, 2016 Special Planning Commission Staff Report (includes Exhibits 26 -31)
6. July 12, 2016 Special Planning Commission Addendum (includes Exhibits 32 -33)
7. July 12, 2016 Special Planning Commission Desk Item (includes Exhibits 34 -35)
8. July 13, 2016 Planning Commission Desk Item (includes Exhibits 36 -39)
9. July 12, 2016 Special Planning Commission Meeting Verbatim Minutes
10. July 13, 2016 Planning Commissio n Meeting Verbatim Minutes
Attachments (previously received wi th August 9 , 2016 Staff R eport ):
11. Required Findings and Considerations
12 . Draft Resolution to deny the applications
13 . Draft Resolution to approve the applications (includes Exhibit A, Findings and Exhibit B,
Conditions of Approval)
1 4 . Public comments received between 11:01 a.m. July 13, 2016 and 11:00 a.m. August 4, 2016
1 5 . Additional information from the applicant, received July 29, 2016 (11 pages)
Attachments (previously received with August 9, 2016 A ddendum Report):
16 . Public comments received between 11:01 a.m. August 4, 2016 and 11:00 a.m.
August 5, 2016
17. Applicant’s response to the Planning Commission recommendation on the applications ,
received August 5, 2016
18. Updated Vesting Tentative Map Sheet 1.1
Attachments (previously received with August 9, 2016 Addendum B Report):
19. Public comments received between 11:01 a.m. August 5, 2016 and 11:00 a.m.
August 8, 2016
Attachments (previously received with August 9, 2016 Desk Item Report ):
20 . Public comments received between 11:01 a.m. August 8, 2016 and 11:00 a.m.
August 9, 2016
21 . Applicant’s response to the Town Council staff report, received August 8, 2016
22 . Photos of high density projects
23. Revised Draft Resolution to approve the applications (includes Exhibit A, Findings and
Exhibit B, Conditions of Approval)
Attachments (previously received with August 11, 2016 Desk Item B Report ):
24. Public comments r ece ived between 11:01 a.m. August 9 , 2016 and 11:00 a.m.
August 11 , 2016
25. Document referenced by Joseph Gemignani regarding survey results
26. Applicant’s response to questions from the August 9, 2016 meeting
Attachments (previously received with August 16, 2016 Desk Item C Report ):
27 . Public comments received between 11:01 a.m. August 11 , 2016 and 11:00 a.m.
August 12 , 2016
PAGE 5
MAYOR AND TOWN COUNCIL
SUBJECT: N. 40 PHASE 1 DEVELOPMENT APPLICATIONS/S -13 -090 and M -13 -014
SEPTEMBER 6 , 2016
Attachments (previously received with August 16, 2016 Desk Item D Repor t):
28. Public comments received between 11:01 a.m. August 12 , 2016 and 11:00 a.m.
August 15 , 2016
29. Letter from the applicant’s attorney , received August 12, 2016
Attachment (previously received with August 16, 2016 Desk Item E Report ):
30 . Public comments received between 11:01 a.m. August 15 , 2016 and 11:00 a.m.
August 1 6 , 2016
Attachment (previously received with September 1, 2016 Desk Item F Report ):
31. Public comments received between 11:01 a.m. August 16 , 2016 and 11:00 a.m.
August 19 , 2016
Attachments (previously received with September 1, 2016 Desk Item G Report ):
32. Response to August 16, 2016 Council m eeting from the applicant, received August 25, 2016
(includes Exhibits A -G)
33. Public comments received between 11:01 a.m. August 19 , 2016 and 11:00 a.m.
August 26 , 2016
34. Memorandum from outside legal counsel Remy, Moose and Manley , dated August 26, 2016
3 5 . Memorandum on Housing Element Law and Litigation
3 6 . Letter from the Department of Housing and Community Development , dated August 25, 2016
Attachments (previously received with September 1, 2016 Desk Item H Repor t):
37. Public comments received between 11:01 a.m. August 26 , 2016 and 11:00 a.m.
September 1 , 2016
38. Revised Required Findings
Attachments received with this Desk Item I Report :
39. Public comments received between 11:01 a.m. September 1 , 2016 and 11:00 a.m.
September 6 , 2016
40. Revised Draft Resolution to deny the applications
From: Ca rla Mason [mailto:car l a.d.ma s on (a.f..rnlail.com ]
Sent: Thursday, September 01, 2016 1 2:47 PM
Subject: Please vote NO on North 40 Plan
Hello Los Gatos town officials,
I h ave b ee n living in Los Gatos for 25 years. In 1992 Los Gatos wa s called "TREE CITY USA"
and my class at Alta Vista Elementary was invited to witness another tree being planted in Oak
Meadow Park. I was very proud of the beauty of our town and how it blended with the gorgeous
mountain s.
Now I feel we are losing the beaut y of our town due to the very heavy traffic on Highwa y 1 7
and th e impending plan to put a small town in at the No rth 40.
I a m strongly opposed to the existing plan for the North 40 for the following rea so n s:
+We already have a wonderful downtown that will s uffer greatly if the retail s pace a t the No rth
40 is allowed.
+The density of20 homes per acre i s way OVER CROWDED!!! We need to leave much more
open s pace so we can maintain our "TREE CITY USA" status.
+The traffic will be unbearable with 14 ,00 0 new cars per day. AND with Samaritan Medical
offices planning to add several 4 and 5 story buildings on Samaritan Dri ve, another 15 ,000 car
trips per day are estimated!!!!
Thank yo u for reading my letter. I look forward to being at the Council meeting t o night and
h ea ring you deny the plan for the North 40 .
Please vo t e NO!!!!
R es pectfully ,
Carla Ma so n
160 Arroyo Grande Way
!JaT ACHMENT 3 9
From: Jim Ree s [mail to:Jim c a ;b occar doc orp.com ]
Sent: Thursday, September 01, 20 1 6 1 :48 PM
T o: BSpector; Marico Sayoc ; Marcia Jen sen; Rob Rennie ; Steven Leonardi s; Laurel Prevetti
Subject: Deny North 40
September 1 , 20 16
Dear Los Gatos Tow n Co un cil ,
Due to the e norm o u s p e rman en t impact and r eperc u ss ion s s u rro undin g th e Nort h 40 project , I want to
write yo u a b out the heavy n egative effec t s it will have on o u r idy lli c (yet fragi l e) town in hopes th at yo u
wi ll heed the wi s he s of the v a s t majority of the cit i ze n s of Lo s Gatos and deny the app li cation and sen d
the p l an back to the d eve lop er for s ub stant i a l changes.
I 'm n o t s aying that the North 40 s ite s hould n ever be developed. On the contrary; such an a ttracti ve
d eve l opmen t site could and s hould e nhan ce and impro ve the amb i a n ce of Los Gatos wh il e also p roviding
a reasonab le profit to the de veloper, but on l y i f it is se n sib l y planned w ith th e right motivations in mind
following ground rules s et b y the community.
H erein li es the "rub ". Any intelli gent per son knows that thi s d eve loper 's prime m o tiv at i on i s pr o fit , not
the com muni ty. T h ey're ma xi mi z in g the va lu e of Lo s Gato s Schoo l s b y crammi n g a ll 320 hom es int o t h e
fir s t 20 acre phase of the proj ect. The hom es s hould b e s pr ead throughout t h e e ntir e 44 acres re gard l ess of
th e schoo l district t h ey fall in . To a ll ow this blatantly transparent , pro fi t enhancing developer tactic wi ll
se ll o ut th e Town of Los Gatos , make t h e town suffe r t h e co n se quences and wo uld be an in s ult t o h er
c iti ze n s. The p r ojec t s h o uld be exa min e d as a whole. Don 't fall for th e pi ece m ea l app r oac h .
Furthermore, anyone wit h eyes co uld see the unimaginati ve and blocky ma sses c r eated by the story pol es.
The masse s were (and w ill b e) r e m i ni scen t of a 1 950's sty l e inner-city government h o u sing p r oject.
Not hin g co uld be f u rt h e r fr o m the "l oo k and feel " of Los Gatos. I c hallen ge yo u to find anyt hin g in or
even near Lo s Gatos that l ooks o r feel s lik e th e projec t th at was pre se nt ed. It d oes n 't fit.
La st l y, th e propo sed project w ill undoubtedly h ave a negati ve impact o n ex i s ting downtown Lo s Gatos
retail. I venture to say that it will ultimately ki ll our d owntown retai l a l ong wi th th e r e nt s of d owntown
l and l ords. And a ll ow in g "formula retail " in t h e Nort h 40 project would be patentl y unfair to ex i s tin g
downtown retail , probably d r awing lawsuit s from downtown landlord s, w hich co uld ultimately tu m
downtown re t ai l into the homo ge nou s f ee li ng of Vall ey Fair Mall (or Anywhere USA).
Rather than und ermine the e n tire P l a nnin g Commiss ion (a s we ll as the majority of yo u r cons titu ents) I
u rge yo u to s h ow the le adership nece ss ary to do the right thing for the town yo u l ove and r epresen t and
se nd th e de ve l oper back to the draw in g bo ar d. The project can a n d will be b ette r as a re s ult of your
expected leader s hip and for es i g ht , w h ereas ze ro courage is req uired to si mply rubb ersta mp thi s m assive
in s ult to Los Gatos . Ju st say "NO " to thi s app li cat ion. Your co n s tituent s will thank you!
You r s Truly,
Jim Rees
Boccardo Management Gr oup , LLC
985 U ni Yers it y AYe. S u ite 12
Los Gatos, CA 95032
( 408) 354 -5222
From: Amy Despars [mai l to:A m y D es par s @.h o tma il.co m]
Sent: Thursday, September 01 ,2016 3:31PM
To: BSpector ; Marico Sayoc; Marcia Jensen; s l e o nd ard i s(ii;l os!.!ato s ca .~wv; Rob Rennie; Joel
Paulson; Robert Schultz; lp r e v it ti @ l o s ga t o s ca.g ov
Subject: Tonight
Dear Council Members,
Once again, I applaud you for the time, energy, and commitment you give to the Town of Los
Gatos. I am sorry you have been left with this major decision that will impact the charm ,
sustainability, character, and culture of the Town of Los Gatos forever.
After the last meeting, regarding the Town Council I was left wondering , "Why not deny the
application and then you can take all of the recommendations and use them to amend the
Specific Plan?'' To me it does not make sense to accept the application with
recommendations /accommodations. I feel this is a slippery slope. If you deny the application ,
like Mayor Spector has made a motion to do, then you will be able to amend the application with
all of the recommendations that were mentioned by some of the Town Council Members. From
there, you can plan accordingly for other areas of development in Los Gatos like the Los Gatos
Lodge and Alberto Way.
This is the time to make a plan for the entire town. Why not spread the housing out
throughout the town instead of all of the homes in the North 40 ? You have in-depth legal
information from s ome highly knowledgeable community members and an attorney. Take this
information and use it.
I am sorry you will be reading this the day of the North 40 meeting but this is a busy time for
people between vacationing , dropping off college students , attending multiple Back-to-School
Nights, family commitments etc.
I am telling you this so when you look into the crowd you will know why many of our
community member s are not there. It is not becau s e we do not care.
We have showed you we care by:
*the massive numbers of signatures on the petition asking you to deny the application for the
North 40
*the hundreds of letters that have been written asking you to deny the application and why
*the hundreds of people who have showed up at previous meetings recently and over the year s
*the in-depth research that has been done to show you how you can legally deny this application
*the number of store owners who have posted sign s in their windows asking for the application
to be denied
Please deny the North 40 Application.
Gratefully ,
Amy Despar s
From: M p m i llcn (a ,ao l.com [mai l to :Mpm ill cn (u }ao l.co m]
Sent: Friday, September 02,2016 8:38AM
To: Council
Subject: North 40 and specific plan
Dear council members ,
Now that the pending application has been denied, this i s a good opportunity to revisit the
specific plan for the north 40 area to make sure the specific plan addresses all areas of concern to
the council and community.
I look forward to s upporting the town in thi s endeavor.
Sincerely,
Mark Millen
Los Gatos, CA
( 408) 891-6344
Sent from my iPhone
DONNA M . VENERUSO (d . '09)
LEILA H . MONCHARSH
' Los Gatos Town Council
110 E. Main Street
Los Gatos, CA 95030
LAW OFFICE S
VENERUSO & MONCHARSH
5707 REDWOOD RD ., STE I 0
OAKLAND , CALIFORNIA 94619
TELEPHONE (51 0) 482-0390
FACSIMILE (510) 4 8 2-0391
September 2 , 2016
RECEIVED
SEP -2 2016 @ 3:51rw-
T O WN OF LOS GATOS
P LANNING DlVIS !ON
Re: Architecture and Site AQQlication S -13-090; Vesting Tentative MaQ M-13-014-
North 40 Specific Plan Phase 1
Dear Mayor, Vice Mayor, and Council Members :
This is to request that the Town staff provide the draft findings to the public no later than
noon on Monday, September 5, 2016 , even though it is a holiday. We are quite concerned that
staff's recommended fmdings be as inclusive as possible in the event that the developer chooses
to pursue litigation , challenging the Town Council's well-reasoned decision to deny the
application. We are seeking an opportunity to submit comments to your Council regarding those
draft fmdings .
While staff has done an incredible job with a very large and complicated project, it is
unlikely that a court would view this project the s ame way as staff and is more likely to view it
by applying the typ i cal standard of review for land use cases. (See Desk Item H, p. 2.) The court
will not re-try this land use matter and decide what it would have done had it been allowed to
make the decision you made , but instead will look carefully at your Council's findings and
whether they ar e supported by evidence in the record . The court's
funct i on is simply to decide whether the city officials considered the applicable
policies and the extent to which the proposed project conforms with those
policies, whether the city officials made appropriate findings on this issue, and
whether those fmdings are supported by substantial evidence .
(Nara g hi Lakes Neighborhood Preservation Association v. City of Modesto (July 1, 20 16)
<http ://www.c o urts.ca .gov/opinions /documents/F071768.PDF>, p . 10-citations and quotation
marks om i tted-cited in my letter , dated August 30 , 2016 .)
Therefore , your findings are extremely important and should be given the utmost attention with
an understanding of how the court will process them .
Furthermore , contrary to the staff report , there is no legal basis in statutes or case law
supporting staff's position that a court would view low-income seniors as half of one category
(low-income) and half of the other category (seniors) in determining whether the project qualified
for any density bonus . The human beings living in th e senior housing are not divisible, the policy
Page2
behind the density bonus law is intended to benefit them, and no reasonable judge would turn
that policy on its head by faulting your Council for refusing to subject seniors to living conditions
with no accessibility to basic resources. It is also highly unlikely that a court would think your
Council abused its discretion by refusing to accept a promise of future accessible resources in
project site retail establishments that are not part of the project, have no conditions ~f approval
requiring them, and that may never come into existence . Accordingly, your findings should
include that the project does not provide accessibility to necessary resources for low-income
seniors, the only population included in the project.
Moreover, even if the Town viewed the project as serving low-income adults, and could
divorce the "senior" description, we would be talking about very different issues than with senior
low-income adults . Instead, we would be discussing the size of the units for low-income families
under the state Fair Housing laws and substantially more parking than is included in the current
project. Therefore, the findings need to include that your Council viewed the underprivileged
population as low-income seniors and did not consider other categories such as low-income
families .
Mayor Spector handled staffs claim that various General Plan and Specific Plan policies
were "subjective, not objective ." We contended that this test does applies when there is a fmding
that the project is in compliance with the General Plan and Specific Plan, not when it is
inconsistent with them, and we cited relevant parts of the applicable code . Your Council should
make sure to include in its findings all of the features of the project that are inconsistent with
these two documents and specify all of the relevant policies.
It is not true, as staff contends, that your Council may only consider the Specific Plan
because it expressly relies on the General Plan. The Specific Plan contains the following
language:
The purpose of the North 40 Specific Plan is to implement the Town of Los Gatos
General Plan and to comprehensively plan for future development in the Specific
Plan Area . The Specific Plan will be a regulatory tool that the Town of Los Gatos
will use to guide future development. While the General Plan is the primary guide
for growth and development in Los Gatos, the Specific Plan focuses on the unique
characterist i cs of the Specific Plan Area and customizes the planning process and
land use regulations to reflect the Town Vision Statement and Guiding Principles
for this area .
(Specific Plan, Introduction , p . 1 .)
The Town housing element is in the General Plan, not the Specific Plan . While it is true that if
there is a conflict between the General Plan and the Specific Plan, the latter controls . We did not
notice conflicts between these two plans in the context of the proposed project. In the findings,
your Council should include as many goals and policies from both documents as you decide
apply to the proposed project. (We did not include in our letter any policies that were purely
advisory, normally identified by the word "should.")
Page3
There are bills before the state legislature that deal with affordable housing and more may
be considered in 2017 . There also have been amendments to existing density bonus laws over the
last few years . Your findings , however, should not be guided by speculation about future
legislation or by horror stories concerning courts . After 3 8 years of law practice, most of it spent
in courtrooms , I certainly have run into judges who were unreasonable , illogical, and careless .
However, the vast majority of judges are competent, hard-working people who try their very best
to be fair to litigants. Santa Clara Superior Court has an excellent reputation for highly skilled
judges. While there are risks in any litigation, I would not expect that a Santa Clara judge hearing
this matter will come down hard on a town council of five people who have given so much
attention to a development project as your Council. The atmosphere of changing laws, new laws,
poorly drafted statutes , and politics pushing high density housing have been just a few of the
challenges facing your Council. Judges understand this kind of quagmire facing local decision-
makers and are not likely to usurp your role or handle the case punitively.
At this point, the best service your Council can provide to the citizens of Los Gatos is to
carefully go over the findings and make sure that they are clear and complete for the court's
consideration . Helping the court fully understand your thinking process through your findings is
the best road towards a good result.
Thank you for considering our comments.
LHM:lm
cc : Ms . Dodson
Very truly yours,
...h..:-tt:-?<,.~
Leila H. Moncharsh , J .D ., M .U .P .
Veneruso & Moncharsh
From:
Sent:
To:
Subject:
Babette Goldstein Ito < babettegoldstein@yahoo .com >
Friday, September 02, 2016 4 :35 PM
BSpector ; Marice Sayoc; Steven Leonardis; Planning
Thank you re North 40!
I know this was a lot of work and continues to be . Thank you for being a supporter of quality of LG life and our children's future .
Yours
babette ito
worcester loop
los gatos
1
From : a h c llm c r lft c o m ca . t.ne t [mai l t o:a h e l lm e r @,co m cas t.n c t )
Sent: Friday, September 02 , 2016 4 :45PM
To: Council
Subject : Regarding Last Night's Town Council Meeting (9/1 /2016) on the Proposed North 40
Development
Dear Town Council,
Thank you again and again for your service to this Town last night in that you listened to the
majority of the citizens and you did the right thing, Bravo!!
We can do this right. For today and for the future. I have faith that the developer will s ee the
merit in choosing to work with the Town in modifying the proposal instead of taking their
chances in going to court.
Respectfully,
Anna Hellmer
14 7 Las Astas Drive
Los Gatos
From: Leila H. Moncharsh [mail to: 1 01550(i u m sn.c om ]
Sent: Monday , September 05,2016 3:49PM
To: BSpector; Marico Sayoc; Marcia Jensen; Steven Leonardis; Rob Rennie ; Robert Schultz ;
Laurel Prevetti ; Joel Paulson; btdodson (a !ao l.com
Subject: A&S Application S-13-090; VTM M-13-014-North Forty
Dear Mayor , Vice-Mayor, Council Members, and Planning Department,
Please find attached two documents . Format 1 is a short document listing our recommended
findings with little to no legal support. Format 2 is a longer document with a description of how
we arrived at various conclusions and suggested findings.
We did not include Whereas clauses or the findings for the A&S ordinance, leaving those items
to the Town's planner. We also did not include any findings for CEQA because the two permits
were not approved.
Thank you for allowing us the privilege of submitting suggested findings,
Leila Moncharsh , attorney for Barbara Dodson
PROPOSED DRAFT FINDINGS
SUBMITTED BY VENERUSO & MONCHARSH
SEPTEMBER 5, 2016
FORMAT I
INTRODUCTION
The project application is denied based on the entirety of the administrative
record , including but not limited to the development application and attachments
from the Applicant , hearing videos , former motions by the Town Council prior to
the September I , 2016 hearing, letters from the community, staff reports , plans,
and other documents submitted to the Town during the pendency of the project
application .
In denying the Architecture and Site Permit , the Town Council finds:
There is substantial evidence in the record to support denial of the
requested A&S permit. As shown below, the denial is based upon the
General Plan , Specific Plan , and Below Market Price Ordinance provisions
which are "objective , quantifiable, written development standards ,
conditions , and policies appropriate to, and consistent with , meeting the
jurisdiction 's share of the regional housing need pursuant to Government
Code section 65584."
A. The project does not meet the requirements of Government Code
Section 65915 for a density bonus.
B. The project does not meet the required definition of "mixed-use
development " under Government Code section 65589.5.
C. The project would have an adverse impact on health and safety ; there is no
feasible method to satisfactorily mitigate or avoid the specific impact
without rendering the project unaffordable for the seniors or financially
infeasible; and the specific adverse impact is a significant, quantifiable,
direct , and unavoidable.
D. The proposed project is inconsistent with the General Plan and the Specific
Plan.
A. FAILURE TO PROVIDE ACCESSIBLE SENIOR HOUSING AND
TO F UL FILL OTHER REQUIREMENTS THAT WO ULD ALLOW
FOR A DENSITY BON U S UNDER GOVERNMENT CODE
SECTION 65915
1) The very low-income senior housing in the proposed project doe s not
meet the definition for "senior housing development" in Civil Code section 51 .3
because the project presents inaccessibility problems for seniors needing to obtain
critical resources , including food , healthcare , and social services provided in the
Los Gatos community .
2) The parking proposed in the project of .5 parking spaces per unit does
not serve all of the 49 residents and their co-re s idents or any seniors who can no
longer drive due to age or disability.
3) The s eniors would be located over a market hall with expensive food
specialties, but the project does not include onsite food sources and other
necessities for very low-income persons or seniors.
4) There will be inadequate public transportation available for these
residents to access necessary resources in the community. (Dodson letter , dated
August 28 ,2016, statement by Matt Morley , Director of Parks and Public Works ,
before the Council on September 1 , 2016 , Tom Picraux , the chairperson for the
Los Gatos Community and Senior Services Commission statement before the
Planning Commission on July 12 , 2016 .)
5) Eden and the developer do not dispute that there is currently no
reasonably available public transportation at the project site. (Eden letter of
August 31 , 2016, staff report-Desk Item H , dated September 1 , 2016 , and North
40 Project Description and Letter of Justification , attachment 37.)
6) The project application , including any modifications , does not identify
any lease agreements with retail operators , conditions of approval restricting
commercial space for services applicable to very low-income seniors , or any other
legally binding commitment to provide onsite applicable services.
7) Eden's claim that it will obtain improved bus service is not s upported b y
evidence that any such efforts will succeed, e s pecially in light of the
representations of the Los Gatos Director of Parks and Public Works who reports
that bus service on the street adjoining the site may be reduced or even eliminated.
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8) Eden and the developer have stated b efore the Planning Commission that
no shuttle serv ice will be provided . (Also, see letter of Goldfarb Lipman, dated
September 1 , 20 16.)
9) The developer 's and E den 's repre se ntati ons concerning future available
onsite goods and services for senio rs and the po ssi ble availability of adequate bu s
service are s peculative and do not form the basi s of s ubstantial evidence
supporting that there will be housing that is "accessi ble " for se nior s as part of the
proposed project.
1 0) The proposed project include s three sta nd-alone commercial building s ,
which do not meet the definition of a "housin g development " under se ction 65915
and therefore, the height waivers requested by the Applicant are not granted.
(Remy, Moose letter , dated August 26,2016 , attachment 34 .)
B. FAILURE TO MEET THE REQUIRED DEFINITION OF "M IXED-
USE DEVELOPMENT" UNDE R GOVERNMENT CODE SECTON
65589.5
1) The proposed project does not meet th e definition of a "mix e d-us e
development " because the nonre s id ent ial u ses are "not limited to n eighbo rhood
commercial uses." (Govt Code, sec . 65589.5 , subd. (h)(2).
2) The three stand-alone commercial buildin gs do not include any hou sing and
therefore , do not fall within the definition of "m ixed use developments."
3) T he project does not m ee t the r e quirem e nt s under s ubdivi s ion (h)(3) becau se it
provides an insuffici e nt number of low-income dw e llin gs. It needed to contain
64 unit s, not 49 units.
C. SIGNIFICANT, Q UANTIF IABLE, DIRECT, AND UNAV OIDABL E
ADVERSE IMPACTS ON HEALTH AND SAFETY, AND LACK OF
FEASIBLE METHODS FOR MITIGATION
1) The senior housing component of th e project would have an adverse impact on
the health and safe ty for the public due to the inaccessibility problems for the
se mor s .
41 P ag e
2) The multi-lanes of high volume that the seniors would have to cross after
getting off buses would create substantial safety risks for them and for the
drivers us i ng these lanes.
3) There is no feasible way to satisfactorily mitigate the adverse impacts for the
seniors and the drivers without rendering the project unaffordable for the
seniors or financially infeasible for the developer because the buses cannot be
moved by the Applicant , and a bridge with an elevator would be prohibitively
expensive. The Applicant has refused to offer a shuttle service or other
mitigation.
4) The adverse impacts are significant because they deprive the seniors of the
ability to access necessary goods and services , and the ability to participate in
the greater community out s ide the project units.
5) The adverse impacts are quantifiable and direct because the information in Ms.
Dodson 's letter is objectively verifiable.
6) The adverse i mpacts violate the state policy for "accessible " senior housing
with adequate services under Civil Code section 51.3 , subdivision (a).
7) The adverse impacts described above are based on the roadway and public
transportation conditions that existed when the developer's application was
deemed complete .
D. INCONSISTENCY WITH TH E GENERAL P L AN AND SPEC I FIC
PLAN
1) The Town Council adopts the recommendation from the Planning Commission
to deny the project application and the bases for that decision.
a . The Planning Commi s sion relied on this Guiding Principle in the Specific Plan :
"The North 40 will embrace hillside views, trees , and open space " and on Policy 01 , p.
2-11 -"Promote and protect views of hillsides and scenic resources." It found the project
incon s istent with both. The Specific Plan made clear that planning for hillside views was
critical to the project through numerous statements , including the following :
(under Overlay Des i gnation, pp. 1-6 ,7) Preserve Town character and view s .
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2 .1 Council Vision. The North 40 "celebrates our history, agricultural
heritage , hillside views , and small town character." (emphasis added)
3 .2.1 (d) Natural sunlight and views should be considered when siting
buildings and landscaped open spaces .
b. The Planning Commission found unconvincing the developer expert 's
statements during the hearing that the proposed project was consistent with the view
policy.
c. The Planning Commission determined that the proposed project was
inconsistent with Policy 3.2.6 , p. 3-8 --"Provide architectural elements , detailing and
ornament to add richness and variety to building facades and facade depth and detail."
This policy related to one of the Guiding Principles in the Specific Plan: "The North
40 will look and feel like Los Gatos." The Specific Plan clearly anticipated buildings
with more architectural interest than those proposed when it stated the following (p. 2-
26):
2.7.4 Setbacks (Residential)
(c) Setback diagrams containing an asterisk (*) are permitted a five foot
encroachment for up to 50% of linear building facade length to allow for
porches , balconies, and other building elements (including livable space) that
will add visual interest and minimize the appearance of a solid wall plane ....
(e) Cornices , belt courses , sills, canopies , cantilevered bay windows ,
chimneys or other similar architectural features may extend or project into a
required setback not more than 30 inches. Eaves may encroach up to 36
inches.
d. The Planning Commission determined that the proposed development is
inconsistent with Policy LU4, p. 2-2 -"Commercial development within the Specific Plan
Area shall be complementary to Downtown through careful control of uses and permitted
square footage ... "Policy LU6 , p. 2-2 requires that the commercial uses in the North 40
serve the residents and adjacent neighborhoods .
e. The Planning Commission determined that the Economic Impact Study required
under the Specific Plan was "flawed " as it applied to the proposed project. . The
proposed project failed to address the Guiding Principle: "The North 40 will address the
Town's residential and /or commercial unmet needs."
Gl fJ age
2) The Town Council considered other evidence purporting to demonstrate that the
proposed project was consistent with the Specific Plan 's Policy 3.2.6 and that it met the
principle that it should "look and feel like Los Gatos," including expert letters from an
outside architect. The Town Council finds that evidence unconvincing and without
credibility.
3) The project fails to provide for the very low-income seniors due to
inaccessibility problems, market rate seniors, low-income households , and moderate
income households. The project does not address the stated residential unmet needs of
millennials (Appendix 6 C of the Specific Plan). The Housing Element repeatedly
emphasized the need for affordable housing and stated that the goal of rezoning 13.5
acres within the North 40 Specific Plan at a density of 20 dwellings per acre was "to
facilitate affordable housing production. (p. 49)" This is also clearly stated as an action
item (p. 27 of the Housing Element). The proposed project does not comply with these
portions of the Specific Plan.
4) The project is inconsistent with Action HOU-1.7 North 40 Specific Plan Area
Rezoning: the Town will rezone 13.5 acres within the North 40 Specific Plan area within
three years of Housing Element adoption at a minimum density of 20 dwelling units per
acre to facilitate affordable housing production .
5) The project is inconsistent with the Housing Element which also specifically
cites as a Strategy to Meet RHNA the following: "Reserving up to 13 .5 acres of the
pending North 40 Specific Plan housing capacity for the provision of affordable units ."(p.
5-11)
6) The remaining 270 units are market-rate units to be sold , according to the
developer , at prices between $900 ,000 and $1 ,500,000. The developer failed to address
the unmet need for millennia! housing that is clearly stated in the Specific Plan .
7) The project fails to provide the "Lower intensity residential " called for in the
Lark District (Specific Plan, p. 2-3). The Specific Plan clearly calls for residential in all
three districts, reflecting the intention that residential units were to be spread out over the
entire 44 acres . Yet 320 of the total367 projected dwellings have been located within the
first 20 of the total44 acres of the North Forty .
8) Of the total367 projected dwellings , the developer placed 193 or 53% in the
Lark District and 127 , or 3 5%, in the part of the Transition District included in Phase 1.
Thus , 88% of the dwellings are located on less than 50% of the North Forty (which is
71 Pag e
really 44 acres), creating particularly in the Lark District high intensity rather than the
lower intensity specifically called for in the Specific Plan .
9) The Applicant is unwilling to accept the remedy to relocate some of the 13 ~
acres allocated for high density housing to districts other than the Lark District. There i s
nothing in the Specific Plan preventing this as confirmed by Community Development
Director Joel Paulson in the following exchange:
MARl CO SA YOC: ... when we did the Housing Element, our obligation was to provide
270 units at 20 units per acre in the Specific Plan. And nowhere in our Housing Element
did we specify where those 13 ~ acres were going. Correct?
JOEL PAULSON: That 's correct.
Town Lawyer Rob Schultz further clarified this in the following exchange:
MARCIA JENSEN: And you believe ... that there are objective standards that this
Council could find in the Specific Plan that would allow it to move some of those 20
units per acre to another spot ...
ROB SCHULTZ: Yes.
1 0) The proposed project does not comply with Ordinance 2181, Town Zoning
Code Chapter 29.10.3000 -29.10.3040 , enacted in October 2009 ("BMP "). BMP section
29.10.3035 because it does not include sufficient affordable housing to comply with this
ordinance .
11) The proposed project is inconsistent with the General Plan Housing Element
as it relates to seniors and very low-income seniors. Goal HOU-4 on page 36 states
"Ensure that all persons have equal access to housing opportunities. Policy HOU-4.1
states , "Support housing programs that protect individuals ' rights."
12) Because of the inaccessibility issues for seniors described above, the proposed
project is inconsistent with several other General Plan Goals and policies on pages 39-40 :
Goal HOU-5 "Retain and expand affordable housing opportunities for seniors." Policy
HOU-5.2 states , "Allow and encourage small-scale living facilities of two to six seniors
that may include nursing care services that can be integrated into existing neighborhoods
as infill development." And , Policy HOU-5.3 requires: "Work with existing senior
lifestyle living and assisted living facilities in Los Gatos , and support the development of
new senior housing that includes continuum of care facilities within the Town."
SI Pag e
13) The proposed project is incon s istent with the Housing Element policie s listed
above becau s e it does not fulfill any of the unmet needs for affordable housing in any
category other than seniors. The General Plan Hou s ing Element committed to far more
affordable housing , and housing in more c ategorie s than provided in the proposed project.
Council member Marico Sayoc explained the problem :
In the Planning Comm i ssion discussion there was talk of reducing square
footage in residential. It was not only intensity , but I want to point out that ,
in our Housing Element , which is part of the reason why we 're looking at
all this "b y right ," in there not only did we commit to 270 but we did
commit to 156 very low, 84 low, and 30 moderate ...
Council member Leonardis also expressed concern about congregat i ng all of the
affordable housing in just the senior category. That was inconsistent with the Specific
Plan.
A s I was voting for motions for housing units [in the Specific Plan], it was
my understanding at the time that they would be incorporated into the three
districts. That 's why I voted the way I voted on that motion. I was also
under the belief there would be affordable housing for not just 55 and older
but for all age groups. It's kind of ironic because we're always trying to
help with senior housing which is a great thing , but by doing that and
putting all of the affordable units in the senior housing project, its almost
like discrimination against those who are not seniors .
14) The proposed project violates Policy DG5 : Residential Siting, listed under 3 .1
Architectural and Site Character Goals and Policies (Specific Plan p. 3-1 ). Policy DG5
states the following : "Locate residential development to minimize traffic, noise, and air
quality impacts " ... (emphasis added)
The EIR stated the following:
The Air District publishes screening tables for roadways with higher
than 10,000 daily trips .... Cancer risks were projected to be the
highest at the southwest comer of the Plan Area , near the State
Route 17 on-ramp from Lark Avenue , where the cancer risk was
14 .3 cases in one million . Cancer risks that exceed the Air District 's
ten-in-one million threshold were projected to extend northward for
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about three -quarters of distance of the Area Plan 's western
boundary , an extend into the Plan Area by about 100 to 140 feet.
In the proposed project , there are residential buildings along Highway
17 with setbacks of 30-57ft. Within that 30-57ft setback, there is a 23ft 2-
lane road , R2 road on the map , which is part of the road that s urrounds the
project. This road will get a large number of cars and has parking along
it. At the North Forty area along Highway 17 freeway approaching Lark,
there are 8 lanes.
The mitigation measure for this high cancer risk area in the EIR is to
use high efficiency filtration and ventilation systems. This mitigation
measure works for office buildings with fixed windows, but does not work
for residential units with windows that open and areas that children can play
in outdoors. When residents open their windows, they will be exposing
themselves to levels of pollution that will put them at additional risk for
health issues. This placement of residential units fails to mitigate air quality
impacts .
IN DENYING THE APPLICATION FOR A SUBDIVISON VESTING
TENTATIVE MAP THE TOWN COUNCIL MAKES THE FOLLOWING
FINDINGS:
Th e re is substantial evidence in the record to s upport denial of th e req uested
Subdivision Vesting Tentative Map.
A. INCONSISTENCY WITH THE GENERAL PLAN'S HO U SING
ELEMENT AND SPECIFIC PLAN
1) T he proposed map is inconsistent with the General and Specific Plans as
de sc ribed above a nd incorporated by reference into this section. Additionally ,
it is inconsistent with the General Plan and Specific Plan as de sc ribed below.
2) The proposed map i s inconsistent with the General Plan's Housing E l eme nt
becau se it pro v ide s only for 49 units of very low-income housing, forcin g a ll
the rest of the 270 low-income and moderate-income housing required for this
site by the Housin g E lement into the other 24 acres of the North 40. (See the
Housing Element on page 19.)
10 I Page
3) Action Item HOU-1.7 commits the Town to rezoning 13.5 acres within the
North 40 Specific Plan area within three years of Housing Element Adoption
at a density of 20 dwelling units per a cre to facilitate affordable housing
production. The 44-acre Specific Plan area has multiple opportunities to
achieve the planned maximum housing yield of270 units as documented in
Appendix 6, page 6-3, Table 6-2. This table . identifies specific sites that
individually or in combination achieve the maximum of 270 units.
4) The layout of the proposed project and the few affordable housing units is
inconsistent with the Housing Element policies that required 156 units of
housing for very low-income, 84 units for low -income , and 30 units for
moderate income households throughout the entire 44 acres. (Table H-2 .) As a
result of so little affordable housing in one part of the 44 acres , it will be
difficult to achieve the consistency that the Specific Plan anticipates.
5) The layout of the site access points in the proposed project is inconsistent with
the requirements set forth in the Specific Plan, page 2-2.
6) Residential units 18 -27, inclusive, should have been better spread out or the
density reduced for a site layout consistent with the Specific Plan.
7) Pursuant to Government Code section 65451 , the Specific Plan is connected
with the General Plan as follows:
The purpose of the North 40 Specific Plan is to implement the Town of Los
Gatos General Plan and to comprehensively plan for future development in
the Specific Plan Area. The Specific Plan will be a regulatory tool that the
Town of Los Gatos will use to guide future development. While the General Plan
is the primary guide for growth and development in Los Gatos , the Specific Plan
focuses on the unique characteristics of the Specific Plan Area and customizes the
planning process and land use regulations to reflect the Town Vision Statement
and Guiding Principles for this area. (Page 1-1, Specific Plan.)
8) The access sites in the proposed project are inconsistent with the Specific Plan
because the proposed project leaves "up in the air" that there "could be" a fourth
access point. The proposed project does not provide where that access point would
occur, or if it would occur at all.
PROPOSED DRAFT FINDINGS
SUBMITTED BY VENERUSO & MONCHARSH
SEPTEMBER 5, 2016
FORMAT2
INTRODUCTION
The Applications for A&S approval and the vesting map are denied based
on the entirety of the administrative record, including but not limited to the
development application and attachments from the Applicant, hearing videos,
former motions by the Town Council prior to the September l, 2016 hearing,
letters from the community, staff reports, plans, and other documents submitted to
the Town during the pendency of the project application.
IN DENYING THE ARCHITECTURE AND SITE PERMIT, THE TOWN
COUNCIL FINDS AS FOLLOWS:
There is substantial evidence in the record to support denial of the
requested A&S permit. As shown below, the denial is based upon the
General Plan , Specific Plan, and Below Market Price Ordinance provisions
which are "objective, quantifiable, written development standards,
conditions, and policies appropriate to, and consistent with, meeting the
jurisdiction's share of the regional housing need pursuant to Section
65584 ."
A. The project does not meet the requirements of Government Code Section
65915 for a density bonus.
B. The project does not meet the required definition of"mixed-use
development" under Government Code section 65589.5.
C. The project would have an adverse impact on health and safety; there is no
feasible method to satisfactorily mitigate or avoid the specific impact
without rendering the project unaffordable for the seniors or financially
infeasible; and the specific adverse impact is a significant, quantifiable,
direct, and unavoidable impact.
D. The project is inconsistent with the General Plan and the Specific Plan.
I
21 Page
A. FAILURE TO PROVIDE ACCESSIBLE SENIOR HOUSING AND
TO FULFILL OTHER REQUIREMENTS THAT WOULD ALLOW
FOR A DENSITY BONUS UNDER GOVERNMENT CODE
SECTION 65915
Code section 65915, in relevant part , requires that the Town grant a density bonus
if a project "w ill contain at least any one of the following:
(B) Five percent of the total units of a housing development for very low
income households, as defined in Section 50105 of the H ealth and Safety
Code.
(C) A senior citizen housing development , as defined in Sections 51 .3 and
51.12 of the Civil Code , or a mobilehome park that limits resid e ncy based
on age requirements for housing for older persons pursuant to Section
798.76 or 799.5 of th e Civil Code .
The state policy defining "senior housing " is found in the state den s it y
bonus s tatute and in Civil Code section 51.3 , which states in pertinent part:
(a) The Legislature finds and declares that this section is e ss e ntial to
establish and preserve specially design e d accessible housing for senior citizens.
Ther e are senior cit i z ens who need special living environments and services, and
find that th ere is an inadequate supply of this type of housin g in the state.
1) The very low-income senior housing in the proposed project doe s not
me et the d e finition for "senior hou s ing development " in Civil Code sec tion 51.3
because the project presents inacce ssi bility problems for seniors needing to obtain
critical resources , including food , healthcare , and social services provided in the
Los Gatos community. The parking proposed in the project of .5 parking spaces
per unit does not serve all of the 49 residents and their co-residents or any se nior s
who can no longer drive due to age or disability. The seniors would be locat e d
over a market hall with expensive food specialties, but the project does not include
onsite food sources and other necessities for very low-income persons or sen ior s.
2) T here will be inadequate public transportation available for the very low-
income se niors to access nece ssary resource s in th e community. (Dodson lett er,
dat e d August 28 , 2016, statement by Matt Morley , Director of Parks and Public
Works , before the Council on September 1 , 2016 , Tom Picraux, the c h airpe rson
for the Los Gatos Community and Senior Services Commission statement befor e
3I Page
the Planning Commission on July 12, 2016 .) Eden and the developer do not
dispute that there is currently no available public transportation at the project site ,
but claim that Eden is working on obtaining more bus service and that in the future
there will be onsite good s and services for seniors . (Eden letter of August 31 ,
2016, staff report -Desk Item H, dated September 1, 2016 , and North 40 Project
Description and Letter of Justification , attachment 37 .)
3) The project application , il).cluding any modifications , does not identify
any lease agreements with retail operators , conditions of approval r e stricting
commercial space for services applicable to very low-income seniors, or any other
legally binding commitment to provide onsite applicable services.
4) Eden's claim that it will obtain improved bus service is not supported by
evidence that any such efforts will succeed , especially in light of the
representations of the Los Gatos Director of Parks and Public Works who reports
that bus service on the street adjoining the site may be reduced or even eliminated.
5) Eden and the developer have stated before the Planning Commission that
no shuttle service will be provided. (Also, see letter of Goldfarb Lipman, dated
September 1 , 20 16 .)
6) The developer 's and Eden's representations concerning future available
onsite goods and services for seniors and the possible availability of adequate bus
service are s peculative and do not form the basis of substantial evidence
supporting that there will be housing that is "accessible " for seniors as part of the
proposed project.
7) Civil Code section 51 .2 is not a substitute for Government Code section
65914 , subdivision (C)'s definition of senior housing based on Civil Code section
51.3 . (Goldfarb Lipman letter of September 1 , 2016 .) Sections 51.2 and 51.3 are
part of the Unruh Act that, in all of its subparts , does not contemplate a housing
project that would make it difficult for seniors to access basic life necessities and
services. If seniors did leave the project and find a bus , they would on returning
have to cross multiple lanes of traffic to get back inside their housing.
8) Substituting the definition of "low-income persons" for "seniors" does
not answer the question whether the proposed project is entitled to a density bonus
under Government Code section 65915. The legislative policy for this and its
companion code sections was to make affordable housing available to several
categories of persons in great need of it. While changing the de s cription of the
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category from "seniors" (category C) to "low-income persons " (category B) may
be relevant to figuring out the percentage of density bonus the project could
receive, it does not solve the problem that the housing does not provide reasonable
accessibility for very low-income seniors. They are not "categories " in real life .
Accordingly , the proposed project was not entitled to a density bonus and its
application should be denied .
9) The proposed project includes three stand-alone commercial buildings
which do not meet the definition of a "housing development " under thi s s ection.
As to these three buildings, this density bonus code section would not app l y ,
which means that they wo uld not be entitled to the height waiver s that the
Applicant requests . (Remy, Moose letter , dated August 26 ,2016 , attachment 34.)
B. FAILURE TO MEET THE REQUIRED DEFINITON OF "MIXED-
USE DEVELOPMENT" UNDER GOVERNMENT CODE SECTON
65589.5
The Town 's General Plan includes a provision that a developer proposing an
affordable housing project that qualifies under the plan ma y receive a permit "b y
right." Government Code section 65583.2 , subdiv i sion (i) define s "use by ri g ht " to
mean that a local agency 's review of an owner-occupied or multifamily residential
use may not require discretionary permits or compl ian ce with C E QA , including
even thro u gh design revi ew. However,
[a} n y subdivision of th e sit e s shall b e subj e ct to all laws , includin g,
but not limit e d to , th e local go v ernm e nt ordinan ce implem e ntin g th e
Subdivision Map Act. A local ordinan ce may provid e that "us e by
right" do es not exe mpt th e u se from d e si g n r e vi e w ... Us e b y ri g ht
for all r e ntal multifamil y r e sid e ntial housing shall b e pro v id e d in
accordan ce with s ubdivision (f) of S ec tion 65589.5.
Government Code section 65589.5 , subsection (f) states:
(f) (1 ) N othing in this s ec tion shall b e con s tru e d to pr o hibi t a lo ca l
a ge n cy from requiring th e d eve lopm e nt p r oj ec t to co mpl y with
obj ec tiv e, qu a ntifiabl e, writt e n d eve lopm e nt standard s , conditions,
and polici e s appropriat e to , and consist e nt with, m eet in g th e
j urisdi c tion 's shar e of th e r eg ional housing n ee d pursuan t to S ec tion
65584. How e v e r , th e d e v e lopment s tandards, c onditio ns, an d
poli c i e s shall b e appli e d to facilitat e and a cc ommodat e d eve lopm e nt
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at the density permitted on the site and proposed by the
development.
Government Code section 65589.5 prohibits a local agency from disapproving a
development project for very low-income households except under circumscribed
conditions . It reads, in relevant part:
(d) A local agency shall not disapprove a housing development
project ... for very low-income households ... or condition
approval in a manner that renders the project infeasible for
development for the use of very ... low-income households ... ,
including through the use of design review standards, unless it
makes written findings, based upon substantial evidence in the
record, as to one of the following:
The code then lists the type of findings that would allow a local agency to
disapprove a project. However, this code section does not apply to the
proposed project because the project does not fall within the definitions set
forth in the code.
Under Section 65589.5, subdivision (h)(2), a "housing development project" is
defined as follows:
Housing development project" means a use consisting of any of the
following:
(A) Residential units only.
(B) Mixed-use developments consisting of residential and
nonresidential uses in which nonresidential uses are limited to
neighborhood commercial uses and to the first floor of
buildings that are two or more stories. As used in this
paragraph, "neighborhood commercial" means small-scale
general or specialty stores that furnish goods and services
primarily to residents of the neighborhood.
(C) Transitional housing or supportive housing .
1) The proposed project does not meet the definition of a "mixed-use
development" because the nonresidential uses are "not limited to neighborhood
commercial uses." There is no list of proposed uses and the three stand-alone
commercial buildings do not include any housing. It also does not meet the other
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two categories under subdivisions (A) and (C) and therefore , the code section is
inapplicable to the proposed project.
2) The project does not meet the requirements under subdivision (h)(3)
because it provides an insufficient number of low-income dwellings.
(3 ) "Housing for very low , low-, o r mod e rat e -income hous e holds "
m e ans that either (A) at l e ast 20 p e rc e nt of th e total units shall b e
sold or r e nted to low e r incom e households , as defined in Se ct ion
500 7 9.5 of the Health and Saf ety Cod e, or (B) 100 percent of th e
units shall b e sold or r e nted to p e rsons and families of mod erate
income as defined in S ec tion 50093 of the H e alth and Safety Cod e ,
or p e rsons and families of middl e income , as defined in S ect ion
65008 of this code ...
The proposed project includes 49 units for very low-income seniors and 320 total
units in the project application, including its modifications. Twenty percent of the
total units would equal64 units. Since the proposed project only offers 49 units for
seniors (plus one unit for a manager), it does not meet the definition for
application of Government Code section 65589 .5 and its restrictions are
inapplicable .
C. SIGNIFICANT, QUANTIFIABLE, DIRECT, AND UNAVOIDABLE
ADVERSE IMPACTS ON HEALTH AND SAFETY AND LACK OF
FEASIBLE METHODS FOR MITIGATION
1) Under Government Code section 65589.5, subdivision (d)(2), (1) the
project would have a specific adverse impact on health or safety; (2)
there is no feasible method to satisfactorily mitigate or avoid the
specific impact without rendering the project unaffordable for the
seniors or financially infeasible ; and (3) the specific adverse impact is 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."
Th e developm e nt proj ec t ... as propos e d would hav e a
spec ific, advers e impact upon th e publi c h ea lth or safety, and there
is no f e asible method to satisfactorily mitigate or avoid the specific
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adverse impact without rendering the development unaffordable to
low and moderate-income households or rendering the development
of the emergency shelter financially infeasible. As used in this
paragraph, a "specific, adverse impact" means a significant,
quantifiable, direct, and unavoidable impact, based on objective,
identified written public health or safety standards, policies, or
conditions as they existed on the date the application was deemed
complete. Inconsistency with the zoning ordinance or general plan
land use designation shall not constitute a specific, adverse impact
upon the public health or safety.
The evidence in the record supports all three prongs of the test for denial of the
permit.
(a) The senior housing component of the project would have an adverse
impact on health and safety for the public. The seniors living in the project would
be part of "the public." The isolation of the seniors above the market hall with no
provisions for them to obtain necessary goods and services adversely affects their
health and safety. The failure in the conditions of approval to require a shuttle
service or maintenance of the ventilation system is also a threat to their health.
Requiring them to use public transportation that would involve crossing multiple
lanes of heavy traffic is an adverse impact on their safety and on the safety of
drivers attempting to deal with seniors slowly walking through many lanes of
traffic.
(b) There is no feasible way to satisfactorily mitigate the adverse impacts
for the seniors, as described above, without rendering the project unaffordable
for the seniors or financially infeasible for the developer for two reasons: there is
no way to move the buses around or change the numerous lanes of traffic into
fewer lanes. According to the Los Gatos Director of Parks and Public Works, the
Valley Transportation Agency is considering keeping the 49 bus service the
same, reducing, or eliminating it. A bridge over so many lanes of traffic so that
the seniors could safely get across the street from the bus stop to the project
would not be financially feasible. Nor is it likely seniors, especially those who
are disabled , would be able to use the bridge without an elevator at both ends.
Through its attorney the developer has made it clear that it is unwilling to do
anything further with this project other than discuss minor changes that can be
approved by the Town's planner. It has entered into a streamlining agreement
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with September 7, 2016 as the final date for the Town's decision and after that , it
prefers to sue the Town rather than mitigate the health and sa fety issues.
(c) The adverse impacts are significant because they depri ve the seniors of
the ability to access necessary goods and services, and the ability to participate in
the greater community outside the project units. It is quantifiable and direct
because any planner can verify the information in Ms. Dodson 's l etter. The
impacts she describes are also objective l y verifiable by a Town traffic engineer.
Also , a Town engineer can objectively verify that the senior hou s ing require s a
ventilation system and there is no provision in the conditions of approval for
maintenance of it. The impacts described above violate the state policy for
"accessible " senior housin g with adequate services under Civil Code section 51.3 ,
subdivision (a). The impacts are based on the roadway and public transportation
conditions that existed when the developer 's application was deemed complete.
2) Government Code section 65589.5, s ubdi vision U) provides further support .
(;) Wh e n a proposed housing developm e nt project co mpli es with
appli ca ble , objectiv e general plan and zoning standards and
criteria, including d esign r eview standards, in effect at the time that
th e housing developm ent project's application is det er min e d to b e
complete, but the lo ca l agency propo ses to disapprove th e project or
to approve it upon th e condition that th e project be d eve lop e d at a
low er density, the local agency shall bas e its decision r egar ding the
propos ed housing dev e lopment proj ec t upon written findings
supported by substantial ev idence on th e record that both of the
following conditions ex ist:
(1) The housing development project would have a specific, adverse
impact upon the public h ea lth or safety unl ess the proj ect is
disapproved or approved upon the condition that the project be
d eve lop ed at a low er d e nsity. As us ed in this parag rap h, a "specific,
adverse impact" m ea ns a significant, quantifiable , dir ect, and
unavoidable impact , bas e d on objectiv e, identified written public
health or safety standards, policies, or co nditions as they existe d on
the date the application was deemed comp l e t e .
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(2) There is no feasible m e thod to satisfactorily mitigat e or avoid th e
ad ve rs e impact identifi e d pursuant to paragraph (1), other than the
disapproval of the housing d eve lopm e nt proj e ct or the appro v al of
th e p ro j ec t upon the condition that it b e d eve lop e d at a low e r
d e nsity.
This code subdivision mirrors the test under Government Code section
65589.5 , subdivision (d)(2). The isolation of the very low -income s eniors and their
co -residents over the Market Hall , with no reasonable way for them to acce ss
goods and services falls within this definition .
D. INCONSISTENCY WITH THE GENERAL PLAN AND SPECIFIC
PLAN
The project does not meet the requirements of Government Code section
65589.5 , subdivision (d )(5) for consistency with the General Plan and Specific
Plan. None of the exceptions in this subdivision apply to th is project or override
the requirement in Government Code section 65589 that the local agency comply
with state policies, othe r than those promulgated to encourage affordable housing.
1) Government Code section 65589.5, subdivision (d)(5) provides that the
Town may disapprove a project if:
{5) Th e d eve lopment proj ec t or e m erge nc y shelter is inconsist e nt
with both the jurisdiction 's zo ning ordinanc e and general plan land
us e d esi gnation as specified in any e l e m e nt of the general plan as it
ex isted on the date the application w as d ee m e d complete, and the
jurisdi c tion has adopt e d a re-vised housing element in ac co rdan ce
with S ec tion 65588 that is in substantial compliance with this
article.
There is an exception to this paragraph:
A) This paragraph cannot b e u t ili ze d to disapprove or conditionall y
approve a housing d eve lopm e nt proj ect if the d eve lopment proj ec t is
propos e d on a site that is identifi e d as suitable or availabl e for very
low , low-, or moderat e -incom e hous e holds in the jurisdiction's
housing element , and consistent with th e density specified in th e
housing e l e ment , even though it is inconsistent with both the
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jurisdiction's zoni n g ordinanc e and genera l plan land u s e
designation .
The North 40 is identified in the General Plan Housing E lement as a si t e
available for low-income housing and the project is consistent with the density
level in the Specific Plan. However , as described above , the definition of "housin g
development project " in Governm ent Code section 65589.5 , subdivision (h)(2)
and in the above exception does not correspond with the proposed project because
the project includes stand-alone commerCial buildings that are not "limited to
n e ighborhood commercial us es." The proposed project 's commercial is a l so not
limited to "sma ll-scale general or specialty stores that furnish goods and services
prim a ril y to residents of the neighborhood ."
Presumably , the Legislature did not intend to require that a local agency
would be forced to set aside its General Plan polic ies for large projects which have
a sizeable commercial component , as with the proposed project. This project
includes 66,000 square feet of commercial, none of which is limited in any way to
neighborhood uses. The three stand-alone commercial buildings (A2, B2 , and C 1)
have restaurants that will serve the region, as is generally true with any restaurant ,
as well as unspecified retail. Furthermore , they are large buildings , not
"neighborhood commercial mean[ing] small-scale general or specialty stores that
furnish goods and services primarily to residents of the neighborhood ." (A2 =
10 ,412 square feet ; B2 = 5 ,483 square feet , and Cl = 8,162 square feet.) The
stand-alone commercial building s equal a total of24,057, or 36 p e rcent of the
entire commercial square footage.
2) The Town Council has adopted the recommendation from the Planning
Commission to deny the project application and the bases for that decision . The
Planning Commission held three days of hearings and concluded that the proposed
project was inconsistent with the General Plan and Specific Plan .
a. The Planning Commission relied on this Guiding Principle in the
Specific Plan: "The North 40 will embrace hillside views , trees , and open space ."
Commissioner Hudes went to the si te and looked for himself at the s tory poles and
the plans . He then gave the developer 's expert an opportunity to rebut the concern
that the proposed project was inconsistent with Policy 0 I , p. 2-11 -"Promot e and
protect views of hillsides and scenic resources." He explained why he di sag r ee d
with the expert, giving the developer another opportunity to respond. Eventually,
the commission listed this inconsistency as one of its reasons for the
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recommendation to deny the permit. The Specific Plan made clear that planning
for hillside views was critical to the project through numerous statements ,
including the following :
(under Overlay Designation, pp . 1-6, 7) Preserve Town character and views.
2.1 Council Vision. The North 40 "celebrates our history, agricultural
heritage, hillside views, and small town character." (emphasis added)
3.2.1(d) Natural sunlight and views should be considered when siting
buildings and landscaped open spaces .
b. The Planning Commission reviewed photographs presented by community
members, which showed story poles representing the height of the proposed buildings in
the context of the views toward the hillsides. The Commission found unconvincing the
developer expert's statements during the hearing that the proposed project was consistent
with the view policy. It found the photographs and statements by Commissioner Hudes
about his visit to the site credible . The Town Council adopted the Commission 's
conclusion, based on the recommendation and on the observations of the Council
members.
c. The Planning Commission determined that the proposed project was
inconsistent with Policy 3 .2.6, p. 3-8 --"Provide architectural elements, detailing and
ornament to add richness and variety to building facades and facade depth and detail."
This policy was also one of the Guiding Principles in the Specific Plan : "The North 40
will look and feel like Los Gatos." Citizens appeared before the Planning Commission
and the Town Council with many photographs demonstrating the architectural elements
consistent with Los Gatos. The record amply demonstrated that the proposed project
consisted of uniformly modernistic structures inconsistent with Policy 3 .2 .6 and the
VlSIOn.
The Specific Plan clearly anticipated buildings with more architectural interest
than those proposed when it stated the following (p. 2-26):
2.7.4 Setbacks (Residential)
(c) Setback diagrams containing an asterisk (*) are permitted a five foot
encroachment for up to 50% of linear building facade length to allow for
porches, balconies, and other building elements (including livable space) that
will add visual interest and minimize the appearance of a solid wall plane ....
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(e) Cornices , belt courses , sills , canopies , cantilevered bay windows ,
chimneys or other similar architectural features may extend or project into a
required setback not more than 30 inches. Eaves may encroach up to 36
inches .
d. The record also supports the recommendation from the Planning
Commission , adopted by the Town Council that the proposed development was
inconsistent with Policy LU4 , p. 2-2 -"Commercial development within the
Specific Plan Area shall be complementary to Downtown through careful control
of uses and permitted square footage ... " Polic y LU6 , p. 2-2 required that the
commercial uses in the North 40 serve the re s idents and adjacent neighborhoods.
There were several downtown commercial owners who explained that the
proposed project threatened to cause leakage from the downtown into the North
40 , crippling both commercial areas of Los Gatos. Commissioner Hudes inquired
about the Specific Plan 's requirement that the developer obtain an E conomic
Impact Study to address this issue and the developer produced the author of that
report. The commission concluded that the study was "flawed " because it did not
discuss the key issue of leakage from the Downtown commercial uses.
e . The Planning Commi ss ion also found that the project failed to addre ss
this Guidin g Principle: "The North 40 will addres s the Town 's re s idential and /or
commercial unmet need s." A s shown above , it does not meet the needs of very
low-income seniors because necessary resources for the very low-income seniors
would be inaccessible. It also does not meet the Town 's needs for housing that
would accommodate market-rate seniors because the entire project contains multi-
story buildings with no elevators , other than in the very low-income senior
housing over the market hall.
f . Further , it does not address the stated residential unmet needs of
millennials (Appendix 6 C of the Specific Plan). The Housing Element repeatedly
emphasi z ed the need for affordable housing and s tated that the goal of rezoning
13.5 acres within the North 40 Specific Plan at a density of20 dwellings per acre
was "to facilitate affordable housing production. (p. 49)" Thi s is al s o clearly stated
as an action item (p . 27 of the Hou s ing Element):
Action HOU-1.7 North 40 Specific Plan Area Rezoning: the Town will rezone
13.5 acres within the North 40 Specific Plan area within three year s of
Hou s in g E lement adoption at minimum a den s ity of20 dwelling units per acre
to facilitate affordable housing production .
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The Housing Element also specifically cites as a Strategy to Meet RHNA the
following: "Reserv ing up to 13 .5 acres ofthe pending North 40 Specific Plan
housing capacity for the provi s ion of affordable units. "(p . 5-11)
3) The Town Council considered other evide nce purporting to demonstrate
that the proposed project was consistent with the Specific Plan 's Policy 3.2.6 and
that it met the principle that it s hould "look and feel like Los Gatos," including
expert letters from an outside architect. To the extent that any of that evidence
demon s trated that the propo se d project is consistent with Policy 3.2.6 and the
Guiding Principle that it should "look and feel like Los Gatos ," the Town Council
finds that evidence unconvincing and without credibility. Two Council members
relied on their own experiences of living, working, and recreating in Los Gatos for
many decade s to support their decision that the proposed project is inconsistent
with Policy 3.2.6 and the guiding principle that the project "look and feel " like Los
Gatos.
4) The project offers only 49 affordable dwellings and the se are aimed
exclusively at seniors. There is also one unit for a manager in the se nior
development. The remaining 270 units are market-rate units to be sold, according
to the dev e loper , at prices between $900 ,000 and $1 ,500,000. The de ve loper failed
to address the unmet need for millennia! housing that is clearly stated in the
Specific Plan. (Appendix 6 C of the Specific Plan). The Hou si n g E lement
repeatedly emphasized the need for affordable housing and stated that the goal of
rezoning 13.5 acres within the North 40 Specific Plan at a density of20 dwelling s
per acre was "to facilitate affordable housing production. (p. 49)" This is also
clearly s tated as an action item (p. 27 of the Hou s ing Element). The proposed
project does not comply with these portions of the Specific Plan.
5) The project is inconsistent with Action HOU-1.7 North 40 Specific Plan Area
Rezonin g: the Town will rezone 13 .5 acres within the North 40 Specific Plan area within
three years of Housing Element adoption at a minimum density of 20 dwelling units per
acre to facilitate affordable hou s ing production.
6) The project is incon s i s tent with the Housing E lement which also specifically
cites as a Strategy to Meet RHNA the following: "Reserving up to 13.5 acres of th e
pending North 40 Specific Plan housing capacity for the provision of affordable units."(p.
5-11)
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7) The remaining 270 units are market-rate unit s to be sold, according to the
developer , at prices between $900,000 and $1,500,000. The developer failed to address
the unrnet need for millennia! housing that is clearly stated in the Specific Plan .
8) The project fails to provide the "Lower intensit y re si d e ntial " called for in the
Lark District (Specific Plan, p . 2-3). The Specific Plan clearly calls for residential in all
three districts , reflecting the intention that residential units were to be spread out over the
entire 44 acres. Yet 320 of the total367 projected dwellings have been located within the
first 20 of the total44 acres of the North Forty.
9) Of the total 367 projected dwelling s, th e developer placed 193 or 53% in th e
Lark District and 127 , or 35%, in the part of the Transition District included in Pha se 1.
Thus, 88% of the dwellings are located on less than 50% of the North Forty (which is
really 44 acres), creating particularly in the Lark District high inten s ity rather than the
lower inten s ity specifically called for in the Specific Plan .
1 0) The Applicant is unwilling to accept the remedy to relocate so me of th e 13 Y2
acres allocated for high density housing to districts other than the Lark District. There is
nothing in the Specific Plan preventing this as confirmed by Community Development
Director Joel Paulson in the following exchange:
11) The project fails to provide the "Lowe r inten s ity residential" called for
in the Lark Di strict (Specific Plan, p . 2-3). The Specific Plan clearly calls for
residential in all three districts , reflecting the intention that residential units were
to be spread out over the entire 44 acres. Yet 320 of the total367 projected
dwelling s have been lo ca ted within the first 20 of the total 44 acres of the North
Forty.
12) Of the tota1367 projected dwelling s, the developer placed 193 or 53 %
in the Lark District and 127 , or 35%, in the part of the Transition District included
in Phase 1. Thus, 88% of the dwellings are located on less than 50% of the North
Forty (which is really 44 acres), creating particularly in the Lark District high
intensity rather than the lower intensity s pecifically called for.
T he remedy i s to relocate some of the 13 Y2 acres allocated for high d e nsity
housing to districts other than the Lark District. There is nothing in the Specific
Plan preventing this as confirmed by Community Development Director Joel
Paulson in the following exchange:
15 I Page
MARICO SAYOC: ... when we did the Housing Element , our obligation was
to provide 270 units at 20 units per acre in the Specific Plan . And nowhere in
our Housing Element did we specify where tho s e 13 Y2 acres were going.
Correct?
JOEL PAULSON: That's correct.
Town Lawyer Rob Schultz further clarified this in the following exchange:
MARCIA JENSEN: And you believe ... that there are objective standards
that this Council could find in the Specific Plan that would allow it to move
some of those 20 units per acre to another spot ...
ROB SCHULTZ: Yes.
13) The proposed project does not comply with Ordinance 2181, Town
Zoning Code Chapter 29.10.3000 -29.10.3040 , enacted in October 2009
("BMP "). BMP section 29.10.3035 provides that
If an applicant for zoning approval declines to provide BMP units
requir e d by ordinance, the zoning approval shall be d e ni e d.
The intent of the BMP is to "meeting housing needs shown in the housing element
of the General Plan ." (Sec. 29.10.3000.) Section 29.10.3025 requires that
(3) All proj e cts in excess of one hundr e d (1 00) market rat e units
must provide a numb e r of BMP units equal to tw e nty (20) percent of
th e market rate units.
Section 29.10.3020 define s "BMP dwelling ":
"BMP dwelling" means any residential dw e lling unit d e signat e d for
v e ry low , low , and moderat e income und e r th e rules of this s e ction.
The ordinance requires that the Applicant provide 54 units of low or moderate
income housing , not 49 units. There are 270 market-rate housing units (320 total
units minus 49 very low-income units + 1 manager unit= 270). 20 percent of the
270 market housing units equals 54 units.
14) The Applicant has applied for a waiver of the BMP ordinance and
guidelines , based on the state density bonus law. However , as shown above, the
16 I P a ge
Applicant is not entitled to any density bonus because its project does not meet the
definition of Civil Code section 51.3 for senior accessible housing . Even if it did
meet that definition , there is substantial evidence that its request for the waiver
defeats the very s tate policy of providing affordable housing that the BMP was
enacted to enforce. The proposed project include s an excessive number of market
rate units.
15) The proposed project is inconsistent with the General Plan Housing
Element as it relates to seniors and very low-income seniors. Goal HOU-4 on page
36 states "Ensure that all persons have equal access to housing opportunities.
Policy HOU-4 .1 states, "Support housing programs that protect individuals '
rights." Becau se of the inacce ss ibility issues described above in section 1 , the
proposed project is inconsistent with several other General Plan Goals and policies
on pages 39-40: Goal HOU-5 "Retain and expand affordable hou s ing
opportunities for seniors." Policy HOU-5 .2 states, "Allow and encourage small-
scale living facilities of two to six seniors that may include nursing care services
that can be integrated into existing neighborhoods as infill development." And ,
Policy HOU-5.3 requires: "Work with existing senior lifestyle living and assisted
living facilities in Los Gatos , and support the development of new senior housin g
that includes continuum of care facilities within the Town."
16) The proposed project i s inconsistent with the Housing Element policie s
listed above because it does not fulfill any of the unrnet needs for affordable
housing in any category other than seniors. The General Plan Housing Element
committed to far more affordable housing , and in multiple categories than
provided in the proposed project. Council member Marico Sayoc explained the
problem:
In the Planning Commission discussion there was talk of reducing
square footage in residential. It was not only intensity , but I want to
point out that , in our Hou s ing Element, which is part of the reason
why we 're lookin g at all this "by right ," in there not only did we
commit to 270 but we did commit to 156 very low , 84low, and 30
moderate ...
Council member Leonardis also expressed concern about congregating all of the
affordable hou s ing in just the senior category. That was inconsistent with the
Specific Plan.
17 I Page
As I was voting for motions for housing units [in the Specific Plan],
it was my understanding at the time that they would be incorporated
into the three di s trict s. That's why I voted the way I voted on that
motion. I was also under the belief ther e would be affordable
hou s in g for not just 55 and older but for all age groups. It 's kind of
ironic b eca use we 're always trying to help with senior hou s ing
which is a great thing , but by doing that and putting all of the
affordable units in the senior housing project , its almost like
di sc rimination again st those who are not seniors.
17) The proposed project violates Policy DG5: Residential Siting, listed under 3.1
Architectural and Site Character Goals and Policies (Specific Plan p. 3-1 ). Policy DG5
s tate s the following: "Locate residential developm e nt to minimi ze traffic, noise , and air
quality impacts " ... (emphasis added)
The EIR s tated the following:
The Air Di st rict publi s hes sc reenin g tables for roadways with hi g her
than 10 ,000 dail y trip s .... Cancer risks were projected to be the
hi g he st at the so uthwe s t co mer of the Plan Area , near the State
Route 1 7 on-ramp from Lark Avenue, where the cancer risk was
14 .3 cases in one million. Cancer ri s k s that exceed the Air District's
ten-in -o ne million threshold were projected to extend northward for
about three-quarters of di s tance of the Area Plan 's western
boundary , a n extend into the Plan Area by about 100 to 140 feet.
In the proposed project, there are residential buildings along Highway 17
with setbacks of 30-57ft. Within that 30-57ft setback, there is a 23ft 2-lane
road, R2 road on the map , which is part of the road that surrounds the
project. This road will get a large number of cars and has parking along
it. At the North Forty area along Highway 17 freeway approaching Lark ,
there are 8 lanes .
The mitigation measure for this high cancer risk area in the E IR is to use
high efficiency filtration and ventilation systems. This mitigation measure
works for office buildings with fixed windows, but does not work for
residential units with windows that open and areas that children can play in
18 I Page
outdoors. When r esidents open their windows, they will be exposing
themselves to levels of pollution that will put them at additional risk for
health issues. This placement of residential units fails to mitigate air quality
impacts.
IN DENYING THE APPLICATION FOR A SUBDIVISON VESTING
TENTATIVE MAP THE TOWN COUNCIL MAKES THE FOLLOWING
FINDINGS:
There is substantial evidence in the record to support denial of the requested
Subdivision Vesting Tentative Map.
A . INCONSISTENCY WITH THE GENERAL PLAN'S HOUSING
ELEMENT AND SPECIFIC PLAN
1) The proposed map is inconsistent with the General and Specific Plans as
described above and incorporated by reference into this section. Additionally ,
it is inconsistent with the Genera l Plan and Specific Plan as described below.
2) The proposed map is inconsistent with the General Plan 's Housing Element
because it provides only for 49 units of very low-income housing , forcing all
the rest of the 270 low-income and moderate-income housing required for this
site by the Housing E l emen t into the other 24 acres of the North 40. (See the
Housing Element on page 19.)
3) Act ion Item HOU-1.7 commits the Town to rezoning 13.5 acres within the
North 40 Specific Plan area within three years of Housing E l ement Adoption
at a density of 20 dwelling units per acre to facilitate affordable housing
production. The 44-acre Specific Plan area has multiple opportunities to
achieve the planned maximum housing yield of 270 units as documented in
Appendix 6 , page 6-3 , Table 6-2. This table identifies specific sites that
individually or in combination achieve the maximum of 270 units.
4) The l ayout of the proposed project and the few affordable housing units is
inconsistent with the Housing Element policies that required 156 units of
housing for very l ow-income, 84 units for lo w-income , and 30 unit s for
moderate income households throughout the entire 44 acres. (Table H-2.) As a
19 I Page
result of so little affordable housing in one part of the 44 acres, it will be
difficult to achieve the consistency that the Specific Plan anticipates.
5) The layout of the site access points in the proposed project is inconsistent with
the requiremen t s set forth in the Specific Plan, page 2-2.
6) Residential units 18 -27, inclusive, should have been better spread out or the
density reduced for a site layout consistent with the Specific Plan .
7) Pursuant to Government Code section 65451 , the Specific Plan is connected
with the General Plan as follows :
The purpose of the North 40 Specific Plan is to implement the Town of Los
Gatos General Plan and to comprehensively plan for future development in
the Specific Plan Area. The Specific Plan will be a regulatory tool that the
Town of Los Gatos will use to guide future development. While the General Plan
is the primary guide for growth and development in Los Gatos, the Specific Plan
focuses on the unique characteristics of the Specific Plan Area and customizes the
planning process and land use regulations to reflect the Town Vision Statement
and Guiding Principles for this area . (Page 1 -1 , Specific Plan.)
8) The access sites in the proposed project are inconsistent with the Specific Plan
because the proposed project leaves "up in the air " that there "could be " a fourth
access point. The proposed project does not provide where that access point would
occur , or if i t would occur at all.
ATTACHMENT 40
RESOLUTION 201 6 -___
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS
DENYING A REQUEST FOR THE CONSTRUCTION OF A NEW MULTI -USE,
MULTI -STORY DEVELOPMENT CONSISTING OF 320 RESIDENTIAL UNITS,
WHICH INCLUDES 50 AFFORDABLE SENIOR UNITS; APPROXIMATELY 66,800
SQUARE FEET OF COMMERCIAL FLOOR AREA, WHICH INCLUDES A MARKET
HALL; ON -SITE AND OFF -SITE IMPROVEMEN TS; AND A VESTING TENTATIVE
MAP ON PROPERTY ZONED NORTH 40 SPECIFIC PLAN
APNS: 424 -07 -024 THROUGH 027, 031 THROUGH 037, 070,
083 THROUGH 086, 090, AND 100.
SUBDIVISION APPLICATION : M -13 -014
ARCHITECTURE AND SITE APPLICATION: S -13 -090
PROPERTY LOCATION: SOUTHERLY PORTION OF THE NORTH 40 SPECIFIC
PLAN AREA, LARK AVENUE TO SOUTH OF NODDIN AVENUE
PROPERTY OWNER S : YUKI FARMS, ETPH LP, GROSVENOR USA LIMITED,
SUMMERHILL N40 LLC, ELIZABETH K. DODSON, AND WILLIAM HIRSCHMAN
APPLICANT: GROSVENOR USA LIMITED
WHEREAS, on November 14 , 2013 the applicant, Grosvenor USA Limited, submitted
Architectural and Site (A&S) and Vesting Tentative Map (VTM) applications for the portion of
the Specific Plan area south of Noddin Avenue.
WHEREAS, an Environmental Impact Report (EIR) was prepared f or the North 40
Specific Plan and on January 20 , 2015, the Town Council certified for the North 40 Specific Plan
in compliance with the California Environmental Quality Act (CEQA).
WHEREAS, o n June 17, 2015 , the Town Council adopted the North 40 Specific Plan,
providing detailed land use and development guidance for the area bounded by Highway 17 to
the west, Los Gatos Boulevard to the east, Lark Avenue to the sout h and Highway 85 to the
north.
WHEREAS, t he proposed development identifi ed in the A&S application include d 260
residential condominiums/rowhomes, 10 rental apartments (including two live -work units), 50
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affordable senior rental units, and 66,791 square feet of commercial floor area.
WHEREAS, t he VTM propose d to subdivide the 20.7 -acre project area into 113 lots,
with up to 320 residential condominiums.
WHEREAS, on March 18, 2016 the applicant, Grosvenor USA Limited, submitted
updated Architectural and Site (A&S) and Vesting Tentative Map (VTM) ap plications for the
portion of the Specific Plan area south of Noddin Avenue
WHEREAS , on May 2, 2016 the Town determined that the application s were complete.
WHEREAS, t he Planning Commission held a duly noticed public hearing on March 30,
2016 , at which time the Commission considered the public testimony, the staff report prepared
for that meeting, and all other documentation related to the applications , and continued
consideration of the applications to April 27, 2016.
WHEREAS, on April 27, 201 6 the Planning Commission continued consideration of the
applications to a date uncertain.
WHEREAS, the Planning Commission held a duly noticed public hearing on July 12,
2016, at which time the Commission considered the public testimony, the staff report prepared
for that meeting, and all other documentation related to the applications , closed the public
comment portion of the public hearing, and began to ask qu estions of the applicant team , and
continued the applications to their July 13 , 2016 meeting.
WH EREAS, the Planning Commission continued consideration of the applications on
July 13 , 2016, at which time the Commission concluded its questions of the applicant and staff
and deliberated on the applications . Following their deliberations and considerati on of all the
documentary evidence from the applicant and all interested persons who wished to testify or
submit documents , the Commission recommended that the Town Council deny the proposed
applications based upon the following findings:
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The project is not consistent with the General Plan and the North 40 Specific Plan.
Specifically, the project does not address the unmet needs for senior housing as noted in
Section 2.4 and Appendix C of the Specific Plan.
The project does not incorporate views adequatel y in the layouts as called out in Open
Space Policy 01 View Preservation and does not comply with Design Guideline 3.2.1.d.
Site Planning and Design, and Section 3.2.6.e.i. Building Elements and Articulation
which states “Special care shall be taken to av oid obstructing views to the surrounding
hills.”
The project’s economic study as required in Section 2.4.2 was flawed because it did not
consider the downtown Conditional Use Permit and parking requirements.
The units should be smaller, typical of the exam ples cited on page 6 of the Planning
Commission Report for its July 12, 2016 meeting.
The project does not comply with Policy DG6 Architecture particularly for buildings 24
and 25.
The Specific Plan envisions lower intensity residential uses in the Lark Di strict.
WHEREAS, the Town Council held a duly noticed public hearing on August 9, 2016 at
which time the Council considered the public testimony, the staff report prepared for that
meeting , and all other documentary evidence related to the applications from the applicant and
all interested persons who wished to testify or submit documents , closed the verbal public
comment portion of the public hearing , and continued the applications to a special August 11,
2016 meeting.
WHEREAS, the Town Council continu ed consideration of the applications on August
11, 2016, at which time the Council concluded its questions of the applicant and staff, considered
all other documentary evidence related to the applications from the applicant and all interested
4
p ersons who w ished to submit documents , and continued the applications to the August 16 , 2016
meeting.
WHEREAS, the Town Council continued consideration of the applications on August
16, 2016, at which time the Council deliberated on the applications, c onsidered all other
documentary evidence related to the applications from the applicant and all interested p ersons
who wished to submit documents , requested further information, and continued the applications
to a special September 1, 2016 meeting.
WHEREAS, the Town Council continued consideration of the applications on
September 1, 2016, at which time the Council continued deliberation on the applications,
c onsidered all other documentary evidence related to the applications from the applicant and all
interested p er sons who wished to submit documents .
WHEREAS, the Town Council considered all facts and information related to the
applications.
NOW, THEREFORE, BE IT RESOLVED:
1. Vesting Tentative Map application M -13 -014 and Ar chitecture and Site
application S -13 -0 90 are denied based on the following findings:
T he Vesting Tentative Map and Architecture and Site application (hereinafter “proposed
project”) is inconsistent with numerous North 40 Specific Plan and General Plan policies.
Section 66473.5 of the California Subdivision Map Act states that, “[n]o local agency shall
approve a tentative map…unless [it] finds that the proposed subdivision, together with the
provisions for its design and improvement, is c onsistent with the general plan...or specific plan .”
The proposed Vesting Tentative Map and Architecture and Site application would not be
consistent with the following General Plan and North 40 Specific Plan Policies:
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a. The proposed project overly concentrates all of the residential units that can be built
pursuant to the North 40 Specific Plan and the General Plan Housing Element on the
southern portion of the North 40 Specific Plan area and is therefore inconsistent with
Specific Plan Section 2.5 ; Standard 2.7.3 ; Policy 5.8.2 ; and t he Residential Unit Size
Mix and Table set forth on p age 6 -14 . This negatively affects the site layout and
disproportionately hurts the chances of better site design in the future. .
b. The proposed project is inconsistent with North 40 Specif ic Plan Section 2.3.1 and its
require ment s for lower intensity residential uses in the Lark District .
c. The proposed project buildings 18 through 27 are inconsistent with North 40 Specific
P lan p olicy require ment that the Lark District consist of lower intensity residential
development with office, retail, personal services, and restaurants along Los Gatos
Boulevard .
d. The proposed project buildings 24 and 25 are inconsistent with North 40 Specific
Plan Section 4 -2 as i t eliminates “a fourth access point off of Los Gatos Boulevard
closer to the Lark Avenue intersection ;” are inconsistent with North 40 Specific Plan
p age 3 -1 Policy DG5 requirement that residential development be located to
minimize traffic, noise, and air quality impacts ; and are inconsistent with the
Commercial Design Guidelines beginning on page 3 -2 which guide site plan
development .
e. The proposed project is inconsistent with North 40 Specific Plan Policy Section 2.4
and Appendix C of the Specific Plan as it does not address the unmet housing needs
for senior s and “Gen Y .”
f. The proposed project is inconsistent the Residential Unit Size Mix and Table set forth
on p age 6 -14 of the Specific Plan and the Residential Unit Size Mix should have
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smaller units to come closer to the income distribution of affordable housing
identified in the Town’s certified General Plan Housing Element for 156 very low, 84
low, and 30 moderate income units .
g. The proposed project , specifically bui l dings 18 through 2 7 , would result in an
anomaly of residential uses within an existing commercial land use context.
2. In addition to the above findings, the Town Council denies the Vesting Tentative Map
and Architecture and Site applications based on the entire administrative record.
3. The decision constitutes a final administrative decision pursuant to Code of Civil
Procedure section 1094.6 as adopted by section 1.10.085 of the Town Code of the Town of Los
Gatos. Any application for judicial relief from this decision must be sought wit hin the time
limits and pursuant to the procedures established by Code of Civil Procedure section 1094.6, or
such shorter time as required by s tate and f ederal Law.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of
Los Gatos, California, held on the sixth day of September , 201 6 , by the following vote:
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA