Los Gatos City Council
December 16, 2025

ITEM NO. 18.

PAGE 4 OF 6
SUBJECT: Resolution “Statement and Findings” in Response to Challenged Conduct Notice DATE: December 12, 2025
at the time the preliminary application for the project is filed, even if the Town may not be able to deny the project under Section 65589.5(d)(5) (2024) [Sections 65589.5(f)(1), (o)]. The requirement to apply for a CUP is an objective, written standard that was in effect at the time that the preliminary application for the Project was submitted [Town Code Sections 29.60.215;

29.20.185(8)(c).].

C. Town Consulting Arborist Fee
The Applicant objects to the Town’s requirement that the Applicant pay a deposit of $2,750 for a peer review of the arborist report by the Town’s Consulting Arborist on the basis that “the standards of review for the Town Arborist are, by their very nature, discretionary.” As explained, under the 2024 HAA, the Town retains the ability to apply written, objective standards to Builder’s Remedy projects. The requirement to provide an Arborist Report as part of the application for a new development is provided in the Town Code and applies uniformly to all projects that propose the removal or impact to a protected tree (Town Code Sections

29.10.0950, et seq.). Relatedly, the requirement to pay a fee to have the submitted Arborist Report reviewed by the Town’s Consulting Arborist may be found in the Town’s Comprehensive Fee Schedule for Fiscal Year 2023/24. Because these requirements are written, objective standards, the Town may require the Applicant’s compliance with these requirements.

D. Town Consulting Architect Fee
The Applicant also objects to the Town’s requirement that the Applicant pay a deposit fee of $8,250 for the Town’s Consulting Architect to review the Project.

The Town retains the ability to apply written, objective standards to Builder’s Remedy projects.

The requirement that the Town’s Consulting Architect review planning applications was established by Town Council Resolution No. 2002-25, dated February 28, 2002, which requires the Town’s Consulting Architect to review planning applications against the Town’s design standards. The requirement to pay a fee for the Town’s Consulting Architect’s review of planning applications can be found in the Town’s Comprehensive Fee Schedule for Fiscal Year 2023/24. Because these requirements are written, objective standards, the Town may require the Applicant’s compliance with these requirements.

E. Notification to Outside Agencies and Neighboring Properties The Applicant objects to the Town’s recommendations to (1) respond to comments received by outside agencies such as the Valley Transportation Authority and (2) meet with neighbors regarding the Project. While these items were included in the Town’s consistency letter, they were just recommendations that were offered as a courtesy to the Applicant. Nothing in state law prohibits the Town from making suggestions or recommendations to applicants.

ITEM NO. 18.

PAGE 5 OF 6
SUBJECT: Resolution “Statement and Findings” in Response to Challenged Conduct Notice DATE: December 12, 2025
Nonetheless, neither the continued processing of the Project application nor scheduling the Project for public hearing are contingent upon the Applicant complying with or accepting said recommendations.

F. Request for Additional Information Regarding Below Market Price (BMP) Units Finally, the Applicant challenges the Town’s request to specify in the Project plans which units are Below Market Price (BMP) units and to update the Project Description/Letter of Justification to explain how the Project will comply with the BMP Program requirements (or alternatively, if the Project will not comply any of the BMP requirements, a justification for any such deviation).

The Applicant challenges this requirement on the basis that the “Town’s BMP Program is superseded by the California State Housing Laws for this project, including the Housing Crisis Act, the Housing Accountability Act, the Permit Streamlining Act and the related measures. [Cal.

Const. Art. XI, Sec. 7.] While this may be correct for projects that meet the 2025 definition of a Builder’s Remedy project, it is inapplicable to this project, which must be reviewed under the 2024 version of the statute. The 2024 version of the HAA requires that 20 percent of the total units be affordable to lower income households and contains no limits on local inclusionary requirements.

The Town’s BMP program is codified in Division 6 of Article VIII of Chapter 29 of the Town Code and further detailed in the Town’s Below Market Price Housing Program Guidelines. The BMP Program is applicable to all residential projects that include five (5) or more residential units or parcels and requires that a project proposing at least 101 units provide BMP units in an amount equal to 20 percent of the market rate units. [Town Code Section 29.10.3025.] Because the requirement to provide BMP units is a written, objective standard that was in effect at the time that the Applicant submitted the preliminary application for the Project, the Town may require that the Applicant provide information regarding how the Project will comply with the Town’s BMP Program requirements.

Furthermore, state and federal law requirements, including California Health and Safety Code Section 17929, the California Fair Housing and Employment Act, and the federal Fair Housing Act, impose certain requirements on affordable housing units. The Town needs information regarding the size and location of the BMP units to confirm that the Project conforms with these state and federal requirements.

CONCLUSION:

Town staff has prepared the attached Resolution adopting a “Statement and Findings” in response to the Challenged Conduct Notice (Attachment 5). It explains why the Town’s conduct

ITEM NO. 18.

PAGE 6 OF 6
SUBJECT: Resolution “Statement and Findings” in Response to Challenged Conduct Notice DATE: December 12, 2025
is necessary and provides clear instructions on what the Applicant must submit or supplement so that the Town can set the date and time for a public hearing on the project. Staff recommends that the Town Council adopt the attached Resolution with a “Statement and Findings” in response to the Challenged Conduct Notice.

COORDINATION:

This report was coordinated with the Community Development Department and the Town Manager.

ENVIRONMENTAL ASSESSMENT:

Adoption of the attached Resolution is not a project defined under CEQA, and no further action is required.

Attachments:

1. Housing Accountability Act, Government Code Section 65589.5 (2024)

2. Housing Accountability Act, Government Code Section 65589.5 (2025)

3. Applicant’s Challenged Conduct Notice, dated October 2, 2025

4. Fifth Staff Technical Review Comments – Planning Division, dated September 17, 2025

5. Resolution with Statement and Findings in Response to Challenged Conduct Notice, including Exhibit A and associated Attachments A to G

ITEM NO. 18.
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1. 2023 Cal AB 1633
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ITEM NO. 18.

Gabrielle Whelan
2023 Cal AB 1633
Chaptered, October 11, 2023
Reporter
2023 Cal ALS 768; 2023 Cal AB 1633; 2023 Cal Stats. ch. 768 CALIFORNIA ADVANCE LEGISLATIVE SERVICE > 2023 Regular Session > CHAPTER 768 > Assembly Bill No. 1633
Notice
Added: Text highlighted in green
Deleted: Red text with a strikethrough
Digest
LEGISLATIVE COUNSEL’S DIGEST
AB 1633, Ting. Housing Accountability Act: disapprovals: California Environmental Quality Act.

Existing law, the Housing Accountability Act, prohibits a local agency from disapproving a housing development project, as described, unless it makes certain written findings based on a preponderance of the evidence in the record. The act defines “disapprove the housing development project” as including any instance in which a local agency either votes and disapproves a proposed housing development project application, including any required land use approvals or entitlements necessary for the issuance of a building permit, or fails to comply with specified time periods. Existing law, the California Environmental Quality Act (CEQA), requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that the lead agency proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if the lead agency finds that the project will not have that effect.

This bill, until January 1, 2031, would define “disapprove the housing development project” as also including any instance in which a local agency fails to make a determination of whether the project is exempt from CEQA or commits an abuse of discretion, as specified, or fails to adopt a negative declaration or addendum for the project, to certify an environmental impact report for the project, or to approve another comparable environmental document, if certain conditions are satisfied. Among other conditions, the bill would require a housing development project subject to these provisions to be located on a legal parcel or parcels within an urbanized area and to meet one or more of specified criteria, and to meet or exceed 15 dwelling units per acre. By imposing additional duties on local officials, the bill would create a state-mandated local program.

Existing law requires a petition to enforce the Housing Accountability Act to be brought pursuant to a specified procedure and be filed no later than 90 days from the effective date of a decision of the local agency imposing conditions on, disapproving of, or any other final action taken on a housing development project.

This bill, until January 1, 2031, would provide that a local agency’s failure to make a determination that the project is exempt from CEQA, abuse of discretion, as defined, or failure to adopt, approve, or certify a negative declaration, addendum, environmental impact report, or comparable environmental review document, is deemed final for purposes of filing a petition to enforce the provisions of the act if the local agency did not make a final decision on whether to approve or disapprove a statutory or categorical exemption or a negative declaration, addendum, environmental impact report, or comparable environmental review document under CEQA, as specified, within a specified time period of the applicant’s notice.

ITEM NO. 18.

2023 Cal AB 1633
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Synopsis
An act to amend Section 65589.5 of the Government Code, relating to housing. [Approved by Governor October 11, 2023. Filed with Secretary of State October 11, 2023.] Text
The people of the State of California do enact as follows:

SECTION 1.

The Legislature finds and declares the following:
(a) The purpose of this bill is to refine and clarify the standards, as to certain sites, for whether a local agency’s failure to exercise discretion, or a local agency’s abuse of discretion, as defined by this bill, constitutes a violation of the Housing Accountability Act (HAA) (Section 65589.5 of the Government Code), and to establish procedures that will allow an applicant for a housing development project to provide notice to a local government of the evidence that supports the finding required by Section 21081 of the Public Resources Code or otherwise complying with the California Environmental Quality Act. As to other sites, it is the intent of the Legislature that the bill not affect judicial decisions about whether, or under what circumstances, the failure to exercise discretion or abuse of discretion constitutes a violation of the HAA.
(b) The bill’s provisions will become inoperative on January 1, 2031.

SEC. 2. Section 65589.5 of the Government Code is amended to read:
65589.5.
(a)
(1) The Legislature finds and declares all of the following:
(A) The lack of housing, including emergency shelters, is a critical problem that threatens the economic, environmental, and social quality of life in California. (B) California housing has become the most expensive in the nation. The excessive cost of the state’s housing supply is partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.
(C) Among the consequences of those actions are discrimination against low-income and minority households, lack of housing to support employment growth, imbalance in jobs and housing, reduced mobility, urban sprawl, excessive commuting, and air quality deterioration. (D) Many local governments do not give adequate attention to the economic, environmental, and social costs of decisions that result in disapproval of housing development projects, reduction in density of housing projects, and excessive standards for housing development projects.

ITEM NO. 18.

2023 Cal AB 1633
(2) In enacting the amendments made to this section by the act adding this paragraph, the Legislature further finds and declares the following:
(A) California has a housing supply and affordability crisis of historic proportions. The consequences of failing to effectively and aggressively confront this crisis are hurting millions of Californians, robbing future generations of the chance to call California home, stifling economic opportunities for workers and businesses, worsening poverty and homelessness, and undermining the state’s environmental and climate objectives. (B) While the causes of this crisis are multiple and complex, the absence of meaningful and effective policy reforms to significantly enhance the approval and supply of housing affordable to Californians of all income levels is a key factor.
(C) The crisis has grown so acute in California that supply, demand, and affordability fundamentals are characterized in the negative: underserved demands, constrained supply, and protracted unaffordability.
(D) According to reports and data, California has accumulated an unmet housing backlog of nearly 2,000,000 units and must provide for at least 180,000 new units annually to keep pace with growth through 2025.
(E) California’s overall homeownershiphome ownership rate is at its lowest level since the 1940s.

The state ranks 49th out of the 50 states in homeownershiphome ownership rates as well as in the supply of housing per capita. Only one-half of California’s households are able to afford the cost of housing in their local regions.
(F) Lack of supply and rising costs are compounding inequality and limiting advancement opportunities for many Californians.
(G) The majority of California renters, more than 3,000,000 households, pay more than 30 percent of their income toward rent and nearly one-third, more than 1,500,000 households, pay more than 50 percent of their income toward rent.
(H) When Californians have access to safe and affordable housing, they have more money for food and health care; they are less likely to become homeless and in need of governmentsubsidized services; their children do better in school; and businesses have an easier time recruiting and retaining employees.
(I) An additional consequence of the state’s cumulative housing shortage is a significant increase in greenhouse gas emissions caused by the displacement and redirection of populations to states with greater housing opportunities, particularly working- and middle-class households.

California’s cumulative housing shortfall therefore has not only national but international environmental consequences.
(J) California’s housing picture has reached a crisis of historic proportions despite the fact that, for decades, the Legislature has enacted numerous statutes intended to significantly increase the approval, development, and affordability of housing for all income levels, including this section. (K) The Legislature’s intent in enacting this section in 1982 and in expanding its provisions since then was to significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters. That intent has not been fulfilled. (L) It is the policy of the state that this section be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing. (3) It is the intent of the Legislature that the conditions that would have a specific, adverse impact upon the public health and safety, as described in paragraph (2) of subdivision (d) and paragraph (1) of subdivision (j), arise infrequently.

ITEM NO. 18.

2023 Cal AB 1633
(b) It is the policy of the state that a local government not reject or make infeasible housing development projects, including emergency shelters, that contribute to meeting the need determined pursuant to this article without a thorough analysis of the economic, social, and environmental effects of the action and without complying with subdivision (d).
(c) The Legislature also recognizes that premature and unnecessary development of agricultural lands for urban uses continues to have adverse effects on the availability of those lands for food and fiber production and on the economy of the state. Furthermore, it is the policy of the state that development should be guided away from prime agricultural lands; therefore, in implementing this section, local jurisdictions should encourage, to the maximum extent practicable, in filling existing urban areas. (d) A local agency shall not disapprove a housing development project, including farmworker housing as defined in subdivision (h) of Section 50199.7 of the Health and Safety Code, for very low, low-, or moderate-income households, or an emergency shelter, or condition approval in a manner that renders the housing development project infeasible for development for the use of very low, low-, or moderateincome households, or an emergency shelter, including through the use of design review standards, unless it makes written findings, based upon a preponderance of the evidence in the record, as to one of the following:
(1) The jurisdiction has adopted a housing element pursuant to this article that has been revised in accordance with Section 65588, is in substantial compliance with this article, and the jurisdiction has met or exceeded its share of the regional housing need allocation pursuant to Section 65584 for the planning period for the income category proposed for the housing development project, provided that any disapproval or conditional approval shall not be based on any of the reasons prohibited by Section 65008. If the housing development project includes a mix of income categories, and the jurisdiction has not met or exceeded its share of the regional housing need for one or more of those categories, then this paragraph shall not be used to disapprove or conditionally approve the housing development project. The share of the regional housing need met by the jurisdiction shall be calculated consistently with the forms and definitions that may be adopted by the Department of Housing and Community Development pursuant to Section 65400.

In the case of an emergency shelter, the jurisdiction shall have met or exceeded the need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of Section 65583. Any disapproval or conditional approval pursuant to this paragraph shall be in accordance with applicable law, rule, or standards.
(2) The housing development project or emergency shelter as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, 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. The following shall not constitute a specific, adverse impact upon the public health or safety:
(A) Inconsistency with the zoning ordinance or general plan land use designation. (B) The eligibility to claim a welfare exemption under subdivision (g) of Section 214 of the Revenue and Taxation Code.
(3) The denial of the housing development project or imposition of conditions is required in order to comply with specific state or federal law, and there is no feasible method to comply without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible. (4) The housing development project or emergency shelter is proposed on land zoned for agriculture or resource preservation that is surrounded on at least two sides by land being used for agricultural or

ITEM NO. 18.

2023 Cal AB 1633
resource preservation purposes, or which does not have adequate water or wastewater facilities to serve the project.
(5) The housing development project or emergency shelter is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation as specified in any element of the general plan as it existed on the date the application was deemed complete, and the jurisdiction has adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article. For purposes of this section, a change to the zoning ordinance or general plan land use designation subsequent to the date the application was deemed complete shall not constitute a valid basis to disapprove or condition approval of the housing development project or emergency shelter.
(A) This paragraph cannot be utilized to disapprove or conditionally approve a housing development project if the housing development project is proposed on a site that is identified as suitable or available for very low, low-, or moderate-income households in the jurisdiction’s housing element, and consistent with the density specified in the housing element, even though it is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation.
(B) If the local agency has failed to identify in the inventory of land in its housing element sites that can be developed for housing within the planning period and are sufficient to provide for the jurisdiction’s share of the regional housing need for all income levels pursuant to Section 65584, then this paragraph shall not be utilized to disapprove or conditionally approve a housing development project proposed for a site designated in any element of the general plan for residential uses or designated in any element of the general plan for commercial uses if residential uses are permitted or conditionally permitted within commercial designations. In any action in court, the burden of proof shall be on the local agency to show that its housing element does identify adequate sites with appropriate zoning and development standards and with services and facilities to accommodate the local agency’s share of the regional housing need for the very low, low-, and moderate-income categories. (C) If the local agency has failed to identify a zone or zones where emergency shelters are allowed as a permitted use without a conditional use or other discretionary permit, has failed to demonstrate that the identified zone or zones include sufficient capacity to accommodate the need for emergency shelter identified in paragraph (7) of subdivision (a) of Section 65583, or has failed to demonstrate that the identified zone or zones can accommodate at least one emergency shelter, as required by paragraph (4) of subdivision (a) of Section 65583, then this paragraph shall not be utilized to disapprove or conditionally approve an emergency shelter proposed for a site designated in any element of the general plan for industrial, commercial, or multifamily residential uses. In any action in court, the burden of proof shall be on the local agency to show that its housing element does satisfy the requirements of paragraph (4) of subdivision (a) of Section 65583.
(e) Nothing in this section shall be construed to relieve the local agency from complying with the congestion management program required by Chapter 2.6 (commencing with Section 65088) of Division 1 of Title 7 or the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code). Neither shall anything in this section be construed to relieve the local agency from making one or more of the findings required pursuant to Section 21081 of the Public Resources Code or otherwise complying with the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).
(f)
(1) Except as provided in subdivision (o), nothing in this section shall be construed to prohibit a local agency from requiring the housing development project to comply with 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. However,

ITEM NO. 18.

2023 Cal AB 1633
the development standards, conditions, and policies shall be applied to facilitate and accommodate development at the density permitted on the site and proposed by the development. (2) Except as provided in subdivision (o), nothing in this section shall be construed to prohibit a local agency from requiring an emergency shelter project to comply with objective, quantifiable, written development standards, conditions, and policies that are consistent with paragraph (4) of subdivision (a) of Section 65583 and appropriate to, and consistent with, meeting the jurisdiction’s need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of Section 65583. However, the development standards, conditions, and policies shall be applied by the local agency to facilitate and accommodate the development of the emergency shelter project. (3) Except as provided in subdivision (o), nothing in this section shall be construed to prohibit a local agency from imposing fees and other exactions otherwise authorized by law that are essential to provide necessary public services and facilities to the housing development project or emergency shelter.
(4) For purposes of this section, a housing development project or emergency shelter shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity.
(g) This section shall be applicable to charter cities because the Legislature finds that the lack of housing, including emergency shelter, is a critical statewide problem. (h) The following definitions apply for the purposes of this section:
(1) “Feasible” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors. (2) “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 with at least twothirds of the square footage designated for residential use. (C) Transitional housing or supportive housing.
(3) “Housing for very low, low-, or moderate-income households” means that either (A) at least 20 percent of the total units shall be sold or rented to lower income households, as defined in Section 50079.5 of the Health and Safety Code, or (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in Section 65008 of this code. Housing units targeted for lower income households shall be made available at a monthly housing cost that does not exceed 30 percent of 60 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the lower income eligibility limits are based. Housing units targeted for persons and families of moderate income shall be made available at a monthly housing cost that does not exceed 30 percent of 100 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the moderate-income eligibility limits are based. (4) “Area median income” means area median income as periodically established by the Department of Housing and Community Development pursuant to Section 50093 of the Health and Safety Code.

The developer shall provide sufficient legal commitments to ensure continued availability of units for very low or low-income households in accordance with the provisions of this subdivision for 30 years.
(5) Notwithstanding any other law, until January 1, 2030, “deemed complete” means that the applicant has submitted a preliminary application pursuant to Section 65941.1 or, if the applicant has not

ITEM NO. 18.

2023 Cal AB 1633
submitted a preliminary application, has submitted a complete application pursuant to Section 65943.
(6) “Disapprove the housing development project” includes any instance in which a local agency does any of the following:
(A) Votes on a proposed housing development project application and the application is disapproved, including any required land use approvals or entitlements necessary for the issuance of a building permit.
(B) Fails to comply with the time periods specified in subdivision (a) of Section 65950. An extension of time pursuant to Article 5 (commencing with Section 65950) shall be deemed to be an extension of time pursuant to this paragraph.
(C) Fails to meet the time limits specified in Section 65913.3. (D)
(i) FFails to make a determination of whether the project is exempt from the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code), or commits an abuse of discretion, as defined in this subparagraph, if all of the following conditions are satisfied:
(I) There is substantial evidence in the record before the local agency that the housing development project is not located in either of the following:
(ia) On a site specified in subparagraphs (A) to (C), inclusive, or subparagraphs (E) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4. (ib) Within a very high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection pursuant to Section 51178, or within a high or very high fire hazard severity zone as indicated on maps adopted by the Department of Forestry and Fire Protection pursuant to Section 4202 of the Public Resources Code.
(II) The housing development project is located on a legal parcel or parcels within an urbanized area and meets one or more of the following criteria:
(ia) The housing development project is located within one-half mile walking distance to either a high-quality transit corridor or a major transit stop. (ib) The housing development project is located in a very low vehicle travel area. (ic) The housing development project is proximal to six or more amenities pursuant to subclause (IV) of clause (ii) as of the date of submission of the application for the project.
(id) Parcels that are developed with urban uses adjoin at least 75 percent of the perimeter of the project site or at least three sides of a foursided project site. For purposes of this clause, parcels that are only separated by a street or highway shall be considered to be adjoined.
(III) The density of the housing development project meets or exceeds 15 dwelling units per acre.
(IV) Both of the following criteria are met:
(ia) There is substantial evidence in the record before the local agency that the housing development project is eligible for an exemption sought by the applicant. (ib) If the exemption sought by the applicant is subject to an exception under the Guidelines for Implementation of the California Environmental Quality Act (Chapter 3 (commencing with Section 15000) of Division 6 of Title 14 of the California Code

ITEM NO. 18.

2023 Cal AB 1633
of Regulations), there is substantial evidence in the record before the local agency that the application of that categorical exemption is not barred by one of the exceptions set forth in Section 15300.2 of those guidelines. (V)
(ia) The applicant has given timely written notice to the local agency of the action or inaction that the applicant believes constitutes a failure to make a determination or an abuse of discretion, as defined in this subparagraph, and the local agency did not make a lawful determination within 90 days of the applicant’s written notice.

The applicant’s written notice shall contain all of the following:
(Ia) The information specified in paragraphs (1), (2), (5), and (6) of subdivision (a) of Section 15062 of Title 14 of the California Code of Regulations. (Ib) A citation to the section of Title 14 of the California Code of Regulations or the statute under which the applicant asserts that the project is exempt. (Ic) A brief statement of reasons supporting the assertion that the project is exempt.
(Id) A copy of the excerpts from the record constituting substantial evidence that the criteria of subclauses (I) to (IV), inclusive, are satisfied. (ib) Within five working days of receiving the applicant’s written notice required by subsubclause (ia), the local agency shall file the notice with the county clerk of each county in which the project will be located. The county clerk shall post the notice and make it available for public inspection in the manner set forth in subdivision (c) of Section 21152 of the Public Resources Code. Compliance with this subsubclause is not a condition that must be satisfied in order to find that the local agency has disapproved the housing development project under this subparagraph.
(ic) The local agency may, by providing a written response to the applicant within 90 additional days of the applicant’s written notice, extend the time period to make a lawful determination by no more than 90 days if the extension is necessary to determine if there is substantial evidence in the record that the housing development project is eligible for the exemption sought by the applicant. (id) If the local agency has given the applicant written notice of the local agency’s determination that the project is not exempt, the applicant’s notice shall be deemed timely if and only if it is delivered to the local agency within 35 days of the date that the local agency gave the applicant notice of the local agency’s determination.
(ie) If the local agency has not given the applicant the written notice described in subsubclause (id), the applicant’s notice shall be deemed timely if given after 60 days from the date on which the project application has been received and accepted as complete by the lead agency, or 60 days from the date on which the project application has been determined or deemed to be complete within the meaning of Section 65943, whichever is earlier.
(ii) For purposes of this subparagraph, the following definitions apply:
(I) “Abuse of discretion” means that the conditions set forth in subclauses (I) to (IV), inclusive, of clause (i) are satisfied, but the local agency does not determine that the project is exempt from the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code). This subclause sets forth the exclusive definition of “abuse of discretion” for purposes of this subparagraph.

ITEM NO. 18.

2023 Cal AB 1633
(II) “High-quality transit corridor” has the same meaning defined in subdivision (b) of Section 21155 of the Public Resources Code.
(III) “Major transit stop” has the same meaning as defined in Section 21064.3 of the Public Resources Code.
(IV) “Proximal” to an amenity means either of the following:
(ia) Within one-half mile of either of the following amenities:
(Ia) A bus station.
(Ib) A ferry terminal.
(ib) Within one mile, or for a parcel in a rural area, as defined in Section 50199.21 of the Health and Safety Code, within two miles, of any of the following amenities:
(Ia) A supermarket or grocery store.
(Ib) A public park.
(Ic) A community center.
(Id) A pharmacy or drugstore.
(Ie) A medical clinic or hospital.
(If) A public library.
(Ig) A school that maintains a kindergarten or any of grades 1 to 12, inclusive. (V) “Urbanized area” has the same meaning as defined in Section 21071 of the Public Resources Code.
(VI)
(ia) “Very low vehicle travel area” means an urbanized area, as designated by the United States Census Bureau, where the existing residential development generates vehicle miles traveled per capita that is below 85 percent of either regional vehicle miles traveled per capita or city vehicle miles traveled per capita. (ib) For purposes of sub-subclause (ia), “area” may include a travel analysis zone, hexagon, or grid.
(ic) For the purposes of determining “regional vehicle miles traveled per capita” pursuant to sub-subclause (ia), a “region” is the entirety of incorporated and unincorporated areas governed by a multicounty or single-county metropolitan planning organization, or the entirety of the incorporated and unincorporated areas of an individual county that is not part of a metropolitan planning organization. (iii) This subparagraph shall not be construed to require a local agency to determine that a project is exempt if, on the record before the local agency, the project is not eligible for exemption.
(iv) This subparagraph shall become inoperative on January 1, 2031. (E) Fails to adopt a negative declaration or addendum for the project, to certify an environmental impact report for the project, or to approve another comparable environmental document, such as a sustainable communities environmental assessment pursuant to Section 21155.2 of the Public Resources Code, as required pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code), if all of the following conditions are satisfied:
(i) There is substantial evidence in the record before the local agency that the site of the housing development project is not located on either of the following:

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(I) On a site specified in subparagraphs (A) to (C), inclusive, or subparagraphs (E) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4. (II) Within a very high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection pursuant to Section 51178, or within a high or very high fire hazard severity zone as indicated on maps adopted by the Department of Forestry and Fire Protection pursuant to Section 4202 of the Public Resources Code. (ii) The housing development project is located on a legal parcel or parcels within an urbanized area and meets one or more of the following criteria:
(I) The housing development project is located within one-half mile walking distance to either a high-quality transit corridor or a major transit stop. (II) The housing development project is located in a very low vehicle travel area. (III) The housing development project is proximal to six or more amenities pursuant to subclause (IV) of clause (vii) as of the date of submission of the application for the project.
(IV) Parcels that are developed with urban uses adjoin at least 75 percent of the perimeter of the project site or at least three sides of a foursided project site. For purposes of this clause, parcels that are only separated by a street or highway shall be considered to be adjoined.
(iii) The density of the housing development project meets or exceeds 15 dwelling units per acre.
(iv) There has been prepared a negative declaration, addendum, environmental impact report, or comparable environmental review document that, if duly adopted, approved, or certified by the local agency, would satisfy the requirements of the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) with respect to the project.
(v) The local agency or a body or official to which the agency has delegated authority to adopt, approve, or certify the negative declaration addendum, environmental impact report, or comparable environmental review document has held a meeting at which adoption, approval, or certification of the environmental review document was on the agenda and the environmental review document could have been adopted, approved, or certified, as applicable, but the agency did either of the following:
(I) Committed an abuse of discretion, as defined in this subparagraph. (II) Failed to decide whether to require further study or to adopt, approve, or certify the environmental document.
(vi)
(I) The applicant has given timely written notice to the local agency of the action or inaction that the applicant believes constitutes a failure to decide or an abuse of discretion, and the local agency did not make a lawful determination about whether to adopt, approve, or certify the environmental review document within 90 days of the applicant’s written notice. The applicant’s written notice shall include a copy of those excerpts from the record that constitute substantial evidence that the criteria of clauses (i) to (iv), inclusive, are satisfied.
(II) If the local agency has voted to require further study, rather than adopting, approving, or certifying the negative declaration, addendum, environmental impact report, or comparable environmental review document in the form it was presented for the agency’s consideration, the applicant’s notice shall be deemed timely if and only if it is

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delivered to the local agency within 35 days of the date that the local agency gave written notice of its decision to the applicant.
(III) If the local agency has not voted to require further study, rather than adopting, approving, or certifying the negative declaration, addendum, environmental impact report, or comparable environmental review document in the form it was presented for the agency’s consideration, the applicant’s notice shall be deemed timely if given after the time period specified in Section 21151.5 of the Public Resources Code or another applicable provision of that code for completing the addendum, negative declaration, environmental impact report, or other comparable environmental review document, as applicable, has passed. If the Public Resources Code does not specifically describe the deadline to complete the applicable environmental document, a 180-day deadline is the applicable time period.
(vii) For purposes of this subparagraph, the following definitions apply:
(I)
(ia) “Abuse of discretion” means either of the following:
(Ia) If the local agency fails to adopt a negative declaration, “abuse of discretion” means that the agency, in bad faith or without substantial evidence in the record to support a fair argument that further environmental study is necessary to identify or analyze potentially significant impacts on the physical environment, decided to require further environmental study rather than adopting the negative declaration.
(Ib) If the local agency fails to adopt an addendum for the project, certify an environmental impact report for the project, or approve another comparable environmental document, “abuse of discretion” means that the agency, in bad faith or without substantial evidence in the record that further environmental study is legally required to identify or analyze potentially significant impacts on the physical environment, decided to require further environmental study rather than adopting, approving, or certifying the environmental review document.
(ib) This subclause sets forth the exclusive definition of “abuse of discretion” for purposes of this subparagraph.
(II) “High-quality transit corridor” has the same meaning defined in subdivision (b) of Section 21155 of the Public Resources Code.
(III) “Major transit stop” has the same meaning as defined in Section 21064.3 of the Public Resources Code.
(IV) “Proximal” to an amenity means either of the following:
(ia) Within one-half mile of either of the following amenities:
(Ia) A bus station.
(Ib) A ferry terminal.
(ib) Within one mile, or for a parcel in a rural area, as defined in Section 50199.21 of the Health and Safety Code, within two miles, of any of the following amenities:
(Ia) A supermarket or grocery store.
(Ib) A public park.
(Ic) A community center.
(Id) A pharmacy or drugstore.

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(Ie) A medical clinic or hospital.
(If) A public library.
(Ig) A school that maintains a kindergarten or any of grades 1 to 12, inclusive. (V) “Urbanized area” has the same meaning as defined in Section 21071 of the Public Resources Code.
(VI)
(ia) “Very low vehicle travel area” means an urbanized area, as designated by the United States Census Bureau, where the existing residential development generates vehicle miles traveled per capita that is below 85 percent of either regional vehicle miles traveled per capita or city vehicle miles traveled per capita. (ib) For purposes of sub-subclause (ia), “area” may include a travel analysis zone, hexagon, or grid.
(ic) For the purposes of determining “regional vehicle miles traveled per capita” pursuant to sub-subclause (ia), a “region” is the entirety of incorporated and unincorporated areas governed by a multicounty or single-county metropolitan planning organization, or the entirety of the incorporated and unincorporated areas of an individual county that is not part of a metropolitan planning organization. (viii) This subparagraph shall become inoperative on January 1, 2031. (7)
(A) For purposes of this section, “lawful determination” means any final decision about whether to approve or disapprove a statutory or categorical exemption or a negative declaration, addendum, environmental impact report, or comparable environmental review document under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) that is not an abuse of discretion, as defined in clause (ii) of subparagraph (D) of paragraph (6) or clause (vii) of subparagraph (E) of paragraph (6). (B) This paragraph shall become inoperative on January 1, 2031. (7)(8) “Lower density” includes any conditions that have the same effect or impact on the ability of the project to provide housing.
(8)(9) Until January 1, 2030, “objective” means involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.
(9)(10) Notwithstanding any other law, until January 1, 2030, “determined to be complete” means that the applicant has submitted a complete application pursuant to Section 65943. (i) If any city, county, or city and county denies approval or imposes conditions, including design changes, lower density, or a reduction of the percentage of a lot that may be occupied by a building or structure under the applicable planning and zoning in force at the time the housing development project’s application is complete, that have a substantial adverse effect on the viability or affordability of a housing development for very low, low-, or moderate-income households, and the denial of the development or the imposition of conditions on the development is the subject of a court action which challenges the denial or the imposition of conditions, then the burden of proof shall be on the local legislative body to show that its decision is consistent with the findings as described in subdivision (d), and that the findings are supported by a preponderance of the evidence in the record, and with the requirements of subdivision (o).
(j)

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(1) When a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete, but the local agency proposes to disapprove the project or to impose a condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon written findings supported by a preponderance of the evidence on the record that both of the following conditions exist:
(A) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. 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.
(B) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density. (2)
(A) If the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, it shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity as follows:
(i) Within 30 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains 150 or fewer housing units.
(ii) Within 60 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains more than 150 units.
(B) If the local agency fails to provide the required documentation pursuant to subparagraph (A), the housing development project shall be deemed consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard, requirement, or other similar provision.
(3) For purposes of this section, the receipt of a density bonus, incentive, concession, waiver, or reduction of development standards pursuant to Section 65915 shall not constitute a valid basis on which to find a proposed housing development project is inconsistent, not in compliance, or not in conformity, with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision specified in this subdivision.
(4) For purposes of this section, a proposed housing development project is not inconsistent with the applicable zoning standards and criteria, and shall not require a rezoning, if the housing development project is consistent with the objective general plan standards and criteria but the zoning for the project site is inconsistent with the general plan. If the local agency has complied with paragraph (2), the local agency may require the proposed housing development project to comply with the objective standards and criteria of the zoning which is consistent with the general plan, however, the standards and criteria shall be applied to facilitate and accommodate development at the density allowed on the site by the general plan and proposed by the proposed housing development project.
(k)

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(1)
(A)
(i) The applicant, a person who would be eligible to apply for residency in the housing development project or emergency shelter, or a housing organization may bring an action to enforce this section. If, in any action brought to enforce this section, a court finds that any of the following are met, the court shall issue an order pursuant to clause (ii):
(I) The local agency, in violation of subdivision (d), disapproved a housing development project or conditioned its approval in a manner rendering it infeasible for the development of an emergency shelter, or housing for very low, low-, or moderateincome households, including farmworker housing, without making the findings required by this section or without making findings supported by a preponderance of the evidence.
(II) The local agency, in violation of subdivision (j), disapproved a housing development project complying with applicable, objective general plan and zoning standards and criteria, or imposed a condition that the project be developed at a lower density, without making the findings required by this section or without making findings supported by a preponderance of the evidence.
(III)
(ia) Subject to sub-subclause (ib), the local agency, in violation of subdivision (o), required or attempted to require a housing development project to comply with an ordinance, policy, or standard not adopted and in effect when a preliminary application was submitted.
(ib) This subclause shall become inoperative on January 1, 2030. (ii) If the court finds that one of the conditions in clause (i) is met, the court shall issue an order or judgment compelling compliance with this section within 60 days, including, but not limited to, an order that the local agency take action on the housing development project or emergency shelter. The court may issue an order or judgment directing the local agency to approve the housing development project or emergency shelter if the court finds that the local agency acted in bad faith when it disapproved or conditionally approved the housing development or emergency shelter in violation of this section. The court shall retain jurisdiction to ensure that its order or judgment is carried out and shall award reasonable attorney’s fees and costs of suit to the plaintiff or petitioner, except under extraordinary circumstances in which the court finds that awarding fees would not further the purposes of this section.provided however, that the court shall not award attorney’s fees in either of the following instances:
(I) The court finds, under extraordinary circumstances, that awarding fees would not further the purposes of this section.
(II)
(ia) In a case concerning a disapproval within the meaning of subparagraph (D) or (E) of paragraph (6) of subdivision (h), the court finds that the local agency acted in good faith and had reasonable cause to disapprove the housing development project due to the existence of a controlling question of law about the application of the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) or implementing guidelines as to which there was a substantial ground for difference of opinion at the time of the disapproval.
(ib) This subclause shall become inoperative on January 1, 2031.

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(B) Upon a determination that the local agency has failed to comply with the order or judgment compelling compliance with this section within 60 days issued pursuant to subparagraph (A), the court shall impose fines on a local agency that has violated this section and require the local agency to deposit any fine levied pursuant to this subdivision into a local housing trust fund. The local agency may elect to instead deposit the fine into the Building Homes and Jobs Trust Fund. The fine shall be in a minimum amount of ten thousand dollars ($10,000) per housing unit in the housing development project on the date the application was deemed complete pursuant to Section 65943. In determining the amount of fine to impose, the court shall consider the local agency’s progress in attaining its target allocation of the regional housing need pursuant to Section 65584 and any prior violations of this section. Fines shall not be paid out of funds already dedicated to affordable housing, including, but not limited to, Low and Moderate Income Housing Asset Funds, funds dedicated to housing for very low, low-, and moderate-income households, and federal HOME Investment Partnerships Program and Community Development Block Grant Program funds. The local agency shall commit and expend the money in the local housing trust fund within five years for the sole purpose of financing newly constructed housing units affordable to extremely low, very low, or low-income households. After five years, if the funds have not been expended, the money shall revert to the state and be deposited in the Building Homes and Jobs Trust Fund for the sole purpose of financing newly constructed housing units affordable to extremely low, very low, or low-income households.
(C) If the court determines that its order or judgment has not been carried out within 60 days, the court may issue further orders as provided by law to ensure that the purposes and policies of this section are fulfilled, including, but not limited to, an order to vacate the decision of the local agency and to approve the housing development project, in which case the application for the housing development project, as proposed by the applicant at the time the local agency took the initial action determined to be in violation of this section, along with any standard conditions determined by the court to be generally imposed by the local agency on similar projects, shall be deemed to be approved unless the applicant consents to a different decision or action by the local agency.
(2) For purposes of this subdivision, “housing organization” means a trade or industry group whose local members are primarily engaged in the construction or management of housing units or a nonprofit organization whose mission includes providing or advocating for increased access to housing for low-income households and have filed written or oral comments with the local agency prior to action on the housing development project. A housing organization may only file an action pursuant to this section to challenge the disapproval of a housing development by a local agency.

A housing organization shall be entitled to reasonable attorney’s fees and costs if it is the prevailing party in an action to enforce this section.
(l) If the court finds that the local agency (1) acted in bad faith when it disapproved or conditionally approved the housing development or emergency shelter in violation of this section and (2) failed to carry out the court’s order or judgment within 60 days as described in subdivision (k), the court, in addition to any other remedies provided by this section, shall multiply the fine determined pursuant to subparagraph (B) of paragraph (1) of subdivision (k) by a factor of five. For purposes of this section, “bad faith” includes, but is not limited to, an action that is frivolous or otherwise entirely without merit. (m)
(1) Any action brought to enforce the provisions of this section shall be brought pursuant to Section 1094.5 of the Code of Civil Procedure, and the local agency shall prepare and certify the record of proceedings in accordance with subdivision (c) of Section 1094.6 of the Code of Civil Procedure no later than 30 days after the petition is served, provided that the cost of preparation of the record shall be borne by the local agency, unless the petitioner elects to prepare the record as provided in subdivision (n) of this section. A petition to enforce the provisions of this section shall be filed and served no later than 90 days from the later of (1) the effective date of a decision of the local

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agency imposing conditions on, disapproving, or any other final action on a housing development project or (2) the expiration of the time periods specified in subparagraph (B) of paragraph (5) of subdivision (h). Upon entry of the trial court’s order, a party may, in order to obtain appellate review of the order, file a petition within 20 days after service upon it of a written notice of the entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow, or may appeal the judgment or order of the trial court under Section 904.1 of the Code of Civil Procedure. If the local agency appeals the judgment of the trial court, the local agency shall post a bond, in an amount to be determined by the court, to the benefit of the plaintiff if the plaintiff is the project applicant.
(2)
(A) A disapproval within the meaning of subparagraph (D) of paragraph (6) of subdivision (h) shall be final for purposes of this subdivision, if the local agency did not make a lawful determination within the time period set forth in subclause (V) of clause (i) of that subparagraph after the applicant’s timely written notice.
(B) This paragraph shall become inoperative on January 1, 2031. (3)
(A) A disapproval within the meaning of subparagraph (E) of paragraph (6) of subdivision (h) shall be final for purposes of this subdivision, if the local agency did not make a lawful determination within 90 days of the applicant’s timely written notice. (B) This paragraph shall become inoperative on January 1, 2031. (n) In any action, the record of the proceedings before the local agency shall be filed as expeditiously as possible and, notwithstanding Section 1094.6 of the Code of Civil Procedure or subdivision (m) of this section, all or part of the record may be prepared (1) by the petitioner with the petition or petitioner’s points and authorities, (2) by the respondent with respondent’s points and authorities, (3) after payment of costs by the petitioner, or (4) as otherwise directed by the court. If the expense of preparing the record has been borne by the petitioner and the petitioner is the prevailing party, the expense shall be taxable as costs.
(o)
(1) Subject to paragraphs (2), (6), and (7), and subdivision (d) of Section 65941.1, a housing development project shall be subject only to the ordinances, policies, and standards adopted and in effect when a preliminary application including all of the information required by subdivision (a) of Section 65941.1 was submitted.
(2) Paragraph (1) shall not prohibit a housing development project from being subject to ordinances, policies, and standards adopted after the preliminary application was submitted pursuant to Section 65941.1 in the following circumstances:
(A) In the case of a fee, charge, or other monetary exaction, to an increase resulting from an automatic annual adjustment based on an independently published cost index that is referenced in the ordinance or resolution establishing the fee or other monetary exaction. (B) A preponderance of the evidence in the record establishes that subjecting the housing development project to an ordinance, policy, or standard beyond those in effect when a preliminary application was submitted is necessary to mitigate or avoid a specific, adverse impact upon the public health or safety, as defined in subparagraph (A) of paragraph (1) of subdivision (j), and there is no feasible alternative method to satisfactorily mitigate or avoid the adverse impact.
(C) Subjecting the housing development project to an ordinance, policy, standard, or any other measure, beyond those in effect when a preliminary application was submitted is necessary to

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2023 Cal AB 1633
avoid or substantially lessen an impact of the project under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code). (D) The housing development project has not commenced construction within two and one-half years, or three and one-half years for an affordable housing project, following the date that the project received final approval. For purposes of this subparagraph:
(i) “Affordable housing project” means a housing development that satisfies both of the following requirements:
(I) Units within the development are subject to a recorded affordability restriction for at least 55 years for rental housing and 45 years for owner-occupied housing, or the first purchaser of each unit participates in an equity sharing agreement as described in subparagraph (C) of paragraph (2) of subdivision (c) of Section 65915. (II) All of the units within the development, excluding managers’ units, are dedicated to lower income households, as defined by Section 50079.5 of the Health and Safety Code.
(ii) “Final approval” means that the housing development project has received all necessary approvals to be eligible to apply for, and obtain, a building permit or permits and either of the following is met:
(I) The expiration of all applicable appeal periods, petition periods, reconsideration periods, or statute of limitations for challenging that final approval without an appeal, petition, request for reconsideration, or legal challenge having been filed. (II) If a challenge is filed, that challenge is fully resolved or settled in favor of the housing development project.
(E) The housing development project is revised following submittal of a preliminary application pursuant to Section 65941.1 such that the number of residential units or square footage of construction changes by 20 percent or more, exclusive of any increase resulting from the receipt of a density bonus, incentive, concession, waiver, or similar provision, including any other locally authorized program that offers additional density or other development bonuses when affordable housing is provided. For purposes of this subdivision, “square footage of construction” means the building area, as defined by the California Building Standards Code (Title 24 of the California Code of Regulations).
(3) This subdivision does not prevent a local agency from subjecting the additional units or square footage of construction that result from project revisions occurring after a preliminary application is submitted pursuant to Section 65941.1 to the ordinances, policies, and standards adopted and in effect when the preliminary application was submitted.
(4) For purposes of this subdivision, “ordinances, policies, and standards” includes general plan, community plan, specific plan, zoning, design review standards and criteria, subdivision standards and criteria, and any other rules, regulations, requirements, and policies of a local agency, as defined in Section 66000, including those relating to development impact fees, capacity or connection fees or charges, permit or processing fees, and other exactions. (5) This subdivision shall not be construed in a manner that would lessen the restrictions imposed on a local agency, or lessen the protections afforded to a housing development project, that are established by any other law, including any other part of this section. (6) This subdivision shall not restrict the authority of a public agency or local agency to require mitigation measures to lessen the impacts of a housing development project under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).

ITEM NO. 18.

2023 Cal AB 1633
(7) With respect to completed residential units for which the project approval process is complete and a certificate of occupancy has been issued, nothing in this subdivision shall limit the application of later enacted ordinances, policies, and standards that regulate the use and occupancy of those residential units, such as ordinances relating to rental housing inspection, rent stabilization, restrictions on short-term renting, and business licensing requirements for owners of rental housing.
(8)
(A) This subdivision shall apply to a housing development project that submits a preliminary application pursuant to Section 65941.1 before January 1, 2030. (B) This subdivision shall become inoperative on January 1, 2034. (p)
(1) Upon any motion for an award of attorney’s fees pursuant to Section 1021.5 of the Code of Civil Procedure, in a case challenging a local agency’s approval of a housing development project, a court, in weighing whether a significant benefit has been conferred on the general public or a large class of persons and whether the necessity of private enforcement makes the award appropriate, shall give due weight to the degree to which the local agency’s approval furthers policies of this section, including, but not limited to, subdivisions (a), (b), and (c), the suitability of the site for a housing development, and the reasonableness of the decision of the local agency. It is the intent of the Legislature that attorney’s fees and costs shall rarely, if ever, be awarded if a local agency, acting in good faith, approved a housing development project that satisfies conditions established in subclauses (I), (II), and (III) of clause (i) of subparagraph (D) of paragraph (6) of subdivision (h) or clauses (i), (ii), and (iii) of subparagraph (E) of paragraph (6) of subdivision (h). (2) This subdivision shall become inoperative on January 1, 2031. (p)(q) This section shall be known, and may be cited, as the Housing Accountability Act. (r) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 3.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.

History
Filed with Secretary of State October 11, 2023
Approved by the Governor October 11, 2023
Effective date: January 1, 2024
Sponsor
Ting

CALIFORNIA ADVANCE LEGISLATIVE SERVICE
Copyright © 2025 LexisNexis. All rights reserved.

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2023 Cal AB 1633
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County of Santa Clara- Clerk- Recorder' s Office
State of California
ti , File Number: ENV25842
lj Q ENVIRONMENTAL FILING
NgTotal
No. of Pages: 14
Feees:: $ 0. 00
File Date: 10/ 09/ 2025
f .
077 Expires: 11/ 08/ 2025
7'4 cti ` LOUIS CHIARAMONTE, Clerk- Recorder
By: Corinne Vasquez, Deputy Clerk- Recorder

SANTA CLARA COUNTY CLERK
I:.. CEQA FILING COVER SHEET THIS SPACE FOR CLERK' S USE ONLY Complete and attach this form to each CEQA Notice filed with the County Clerk

TYPE OR PRINT CLEARLY
Check Document being Filed:

Environmental Impact Report( EIR)
Filing Fee( new project)
0 Previously Paid F&W( must attach F& W receipt and project titles must match) No Effect Determination( F& W letter must be attached)
Mitigated Negative Declaration( MND) or Negative Declaration( ND) El Filing Fee( new project)
Previously Paid F& W( must attach F& W receipt and project titles must match) ElNo Effect Determination( F& W letter must be attached) Notice of Exemption( NOE)
El Other( Please fill in type):

Government Code Section 65589. 5( h)( 6)( D)- Challenged Conduct Notice

1. LEAD AGENCY: Town of Los Gatos

2. LEAD AGENCY EMAIL: rsafty@losgatosca. gov

3. PROJECT TITLE: 14288 Capri Drive

4. APPLICANT NAME: Kurt B. Anderson, AlA PHONE: ( 408) 202-5462

5. APPLICANT EMAIL: kanderson@andarchinc. com

6. APPLICANT ADDRESS: 120 W. Campbell Ave, Suite D, Campbell, CA 95008

7. PROJECTAPPLICANT IS A: Local PublicAgency School District Other Special District [] State Agency El Private Entity

8. NOTICE TO BE POSTED FOR 30 DAYS.

Filing fees are due at the time a Notice of Determination/ Exemption is filed with our office. For more information on filing fees and No Effect Determinations, please refer to California Code of Regulations, Title 14, section 753. 5.

Rev 812023
ATTACHMENT 3

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County of Santa Clara cot. T
Clerk- Recorder' s Office 1 :2'`°'
y?Mr
110 West Tasman Drive, First Floor rn c4<
San Jose, California 95134
408) 299- 5688
11/ 10/2025

TOWN OF LOS GATOS
110 E. Main St.

Los Gatos, CA 95030
Re: CALIFORNIA ENVIRONMENTAL QUALITY ACT POSTINGS
Dear Lead Agency:

Enclosed please find the public copy posted in Santa Clara County Clerk- Recorder' s Office for 30 days per CALIFORNIA CODES PUBLIC RESOURCES CODE SECTION 21152 ( c)
Sincerely,
County Clerk- Recorder a
QARA 0*
l
By:

Mike Louie , Deputy Clerk- Recorder
Board of Supervisors: Sylvia Arenas, Betty Duong, Otto Lee, Susan Ellenberg, Margaret Abe- Koga County Executive: James R. Wiliams

ITEM NO. 18.

From: SoCal Industrial Equities
To: Ryan Saftv; Kurt Anderson; Ben Eilenberq; Richard Jacobs Subject: 14288 Capri Drive- Follow- up re: September 17, 2025 and September 18, 2025 letters Date: Thursday, October 2, 2025 2: 14: 29 PM
Attachments: 9- 18- 2025 Letter, pdf
9- 17- 2025 Letter. df
EXTERNAL SENDER]
Ryan,
I am following up on our letters sent two weeks ago. We have not received a substantive response to either one.

To remind you, the September 17, 2025 letter outlined the CEQA exemption in Public Resources Code Section 20180. 66. The September 18, 2025 letter addressed the improper fees and requirements for the project imposed by the Town.

Please get back to us with a response from the Town on or before October 7, 2025.

Please consider this our request to move forward with the administrative process set forth in Government Code Section 65589. 5( h)( 6)( D). We will consider withdrawing the request depending on the substantive response. The violations are set forth in detail in the September 17, 2025 and September 18, 2025 letters, both of which are attached.

Thank you in advance.

Ben

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
September 17, 2025
The Town of Los Gatos
Sent via email to Ryan Safty and uploaded
RE: CEQA Exemption under Public Resources Code Section 65589. 5 for the project located at 14288 Capri Drive
As per the meeting this morning regarding this project located at 14288 Capri Drive I have been requested to prepare a short memorandum on the question of CEQA exemption for the project.

As you may be aware, AB- 130 was recently passed by the Legislature and signed by Governor Newsom. Among other matters, AB- 130 added Section 20180. 66 to the Public Resources Code.

For your convenience, the link to AB- 130 is
https:// leginfo. legislature. ca. gov/ faces/ billNavClient. xhtml? bill id= 202520260AB130.

Section 21080. 66( a) sets forth an 8- part test to determine whether a project is exempt from CEQA. I have included each of the 8 parts below with an explanation of how this project meets the criteria:

1. The project must be less than 20 acres, or if it is a Builder' s Remedy project, the project must be less than 5 acres. (§ 21080. 66( a)( 1)( A)&( B).) a. This project is a Builder' s Remedy project. Therefore it must be less than 5 acres. b. This project is less than 1 acre.

2. The project site must be either within the boundaries of an incorporated municipality or be located within an urban area as defined by the U. S. Census Bureau. 21080. 66( a)( 2)( A)&( B).)
a. This project is located within the Town of Los Gatos. b. The Town of Los Gatos was incorporated in 1887.

3. The project must be on a parcel that meets any of the following criteria: ( A) the parcel was previously developed with an urban use; or (B) at least 75% of the perimeter of the site adjoins parcels that are developed with urban uses; or( C) at least 75% of the area within one- quarter mile radius of the site is developed with urban uses; or( D) for sites with 4 sides, at least 3 of the 4 sides are developed with urban uses and at least 2/ 3 of the perimeter of the parcel adjoins parcels that are developed with urban uses. a. While any of the four preceding criteria are acceptable, this project meets all of the four different methods of satisfying this question. b. For convenience, I have included a satellite image of the project site:
1 Page 616
ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
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c. The project parcel is already developed for urban use. d. At least 75% of the surrounding parcels are developed for urban use. e. At least 75% of the area within one- quarter mile is developed for urban use. f. All 4 of the 4 sides are developed with urban uses and over 2/ 3 of the perimeter of the site adjoin parcels that are developed for urban uses.

4. The project is consistent with the general plan and/ or zoning. a. This is a Builder' s Remedy project subject to Government Code Section 65589. 5. b. As per Government Code Section 65589. 5( f)(6)( D)( iii), "( f)(6) Notwithstanding paragraphs ( 1) to ( 5), inclusive, all of the following apply to a housing development project that is a builder' s
remedy project: ...( D)( iii) Any project that
complies with this paragraph shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, redevelopment plan and implementing instruments, or other similar provision for all purposes, and shall not be considered or treated as a nonconforming lot, use, or structure for any purpose."
c. Summarized, Builder' s Remedy projects are deemed consistent with general plans and zoning for all purposes.
d. As this is a Builder' s Remedy project, it is therefore legally deemed consistent with the general plan and zoning.

5. The project will be at least one- half of the applicable density specified in subparagraph B) of paragraph ( 3) of subdivision ( c) of Section 65583. 2 of the Government Code. a. This is also known as the " Mullin Density."
b. This means that the project must be at least five units per acre for an unincorporated area in a nonmetropolitan county, 10 units per acre in a suburban jurisdiction, and 15 units per acre in a metropolitan jurisdiction.

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
c. As this is a project in a suburban jurisdiction, the project must have at least 10 units per acre.
d. The project has more than the requisite units per acre.

6. The project satisfies the requirements specified in paragraph ( 6) of subdivision ( a) of Section 65913. 4 of the Government Code.
a. Government Code Section 65913. 4( a)( 6) requires that a project not be on a site that is any of the following:
i. An area of the coastal zone subject to paragraph ( 1) or ( 2) of subdivision a) of Section 30603 of the Public Resources Code.
ii. An area of the coastal zone that is not subject to a certified local coastal program or a certified land use plan.
iii. An area of the coastal zone that is vulnerable to five feet of sea level rise, as determined by the National Oceanic and Atmospheric Administration, the Ocean Protection Council, the United States Geological Survey, the University of California, or a local government' s coastal hazards vulnerability assessment.
iv. In a parcel within the coastal zone that is not zoned for multifamily housing.
v. In a parcel in the coastal zone and located on either of the following:

1. On, or within a 100- foot radius of, a wetland, as defined in Section 30121 of the Public Resources Code.

2. On prime agricultural land, as defined in Sections 30113 and 30241 of the Public Resources Code.
b. This project is not in a coastal zone, therefore none of the above criteria are implicated.

7. The project does not require the demolition of a historic structure. a. There are no historic structures on the site.

8. For a project that was deemed complete on or after January 1, 2025, no portion of the project is designated for use as a hotel, motel, bed and breakfast inn, or other transient lodging.
a. This project was deemed complete after January 1, 2025. b. No portion of this project is designated for use as a hotel, motel, bed and breakfast inn, or other transient lodging.

Therefore, as set forth in detail above, this project falls within the CEQA exemption created by AB130 and codified in Public Resources Code Section 21080. 66( a).

Please confirm to me and my client that the Town will comply with Public Resources Code Section 21080. 66( a) and issue a determination that this project is CEQA exempt on or before September 26, 2025.

Sincerely,
Richard B. Jacobs

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
September 18, 2025
The Town of Los Gatos
Sent via email to Ryan Safty and uploaded
RE: Improper Requirements And Fees for the project located at 14288 Capri Drive As per the meeting yesterday morning regarding this project located at 14288 Capri Drive I have been requested to prepare a short memorandum on the question of whether there are improper requirements and fees being demanded by the Town of Los Gatos. There are.

This letter specifically addresses the items listed in the September 17, 2025 Staff Technical Review for the project.

1. Project Consistency Related Items: Letters
a. Item 1—" Multi- Family Residential is not a principally permitted use ( or an allowed conditional use) in the C- 1 zone. The C- 1 zone allows " multiple-family dwelling ( in a mixed- use project)" with a conditional use permit. You must apply for a Conditional Use Permit, and request that the " mixed- use" component of the be removed as a part of the application. • Contact project planner when you are ready to pay the CUP fee, and staff will invoice. Please also confirm if you will be paying by check or credit card. • Previous deficiency comment moved to consistency. • This remains outstanding. The fee is now$ 3, 524. 26 based on the Town' s new fee schedule. See the Town' s letters from March 3, 2025, and May 27, 2025, addressing this comment and applicant responses in detail. The application materials continue to make the same argument, without responding to the Town' s responses. • The response letter submitted on July 18, 2025, as well as the letter from the Law Office of Richard Jacobs dated May 16, 2025, state that this requirement is not in the " New Residential Submittal Requirements." As noted in the staff' s response to the May 16, 2025, letter, the " New Residential Submittal Requirements" is not the Town' s submittal checklist for a discretionary planning application. The " New Residential Submittal Requirements" is a checklist for Building Permit submittals"
i. The primary issue that CUP' s are not an allowable requirement for Builder' s Remedy projects. This is because Government Code Section 65589. 5 deems projects to be consistent with zoning and general plans once the planning application is complete.

1. As per Government Code Section 65589. 5( f)(6)( D)( iii), f)(6) Notwithstanding paragraphs( 1) to (5), inclusive, all of the following apply to a housing development project that is a builder' s
remedy project: ...( D)( iii) Any project that complies with this paragraph shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, redevelopment plan and implementing

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
instruments, or other similar provision for all purposes, and shall not be considered or treated as a nonconforming lot, use, or structure for any purpose."

2. CUP' s are only required for projects that are inconsistent with the by right" uses for a zone. In this case, Government Code Section 65589. 5( f)(6)( D)( iii) makes this project consistent with the " by right" uses for the zone.
ii. The second issue is that CUP' s are, by their very nature, discretionary.

1. According to Section 29. 20.180 of the Town' s Municipal Code, Conditional use permits. The adoption of this chapter is based on the premise that there are uses which can be specified for each zone which, in practically all instances, will be mutually compatible. In addition, there are other uses which might be compatible with ordinarily allowed uses if properly located and regulated. These are called conditional uses. They are listed in section 29.20. 185. However, the listing of a conditional use does not indicate that the use must be allowed. There will be locations or instances where a specified conditional use is inappropriate in a zone regardless of the extent of regulation."

2. However, with Builder' s Remedy projects all discretion must be exercised in favor of the approval and provision of housing. ( Gov.

Code § 89( a)( 2)( L).) Therefore, any discretion must be exercised in favor of the project, meaning that the CUP process is both irrelevant and improper.
iii. The third issue is that CUP' s do not address the only five questions that may be addressed by the Town under Government Code Section 65589. 5( d)( 5).

1. As noted above, this project is a Builder' s Remedy project under Government Code Section 65589. 5. As this project was submitted while the Town' s Housing Element was non- compliant, the five questions that may be addressed are encapsulated in Government Code Section 65589. 5( d)( 5). They are:
a. ( 1) The jurisdiction has adopted a housing element
pursuant to this article that has been revised in accordance with Section 65588, is in substantial compliance with this article, and the jurisdiction has met or exceeded its share of the regional housing need allocation pursuant to Section 65584 for the planning period for the income category
proposed for the housing development project, provided
that any disapproval or conditional approval shall not be based on any of the reasons prohibited by Section 65008.

If the housing development project includes a mix of
income categories, and the jurisdiction has not met or
exceeded its share of the regional housing need for one or

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
more of those categories, then this paragraph shall not be used to disapprove or conditionally approve the housing development project. The share of the regional housing
need met by the jurisdiction shall be calculated
consistently with the forms and definitions that may be adopted by the Department of Housing and Community
Development pursuant to Section 65400. In the case of an emergency shelter,the jurisdiction shall have met or
exceeded the need for emergency shelter, as identified
pursuant to paragraph ( 7) of subdivision ( a) of Section 65583. Any disapproval or conditional approval pursuant to this paragraph shall be in accordance with applicable law, rule, or standards.
b. ( 2) The housing development project or emergency shelter as proposed would have a specific, adverse impact upon
the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, 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. The following shall not constitute a specific, adverse impact upon the public health or safety:
i. ( A) Inconsistency with the zoning ordinance or
general plan land use designation.
ii. ( B) The eligibility to claim a welfare exemption
under subdivision (g) of Section 214 of the Revenue
and Taxation Code.
c. ( 3) The denial of the housing development project or imposition of conditions is required in order to comply with specific state or federal law, and there is no feasible method to comply without rendering the development
unaffordable to low- and moderate- income households or rendering the development of the emergency shelter
financially infeasible.
d. ( 4) The housing development project or emergency shelter is proposed on land zoned for agriculture or resource
preservation that is surrounded on at least two sides by land being used for agricultural or resource preservation

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
purposes, or which does not have adequate water or
wastewater facilities to serve the project.
e. ( 5) On the date an application for the housing
development project or emergency shelter was deemed
complete, the jurisdiction had adopted a revised housing element that was in substantial compliance with this
article, and the housing development project or
emergency shelter was inconsistent with both the
jurisdiction' s zoning ordinance and general plan land use designation as specified in any element of the general
plan.
i. ( A) This paragraph shall not be utilized to
disapprove or conditionally approve a housing
development project proposed on a site, including
a candidate site for rezoning, that is identified as
suitable or available for very low, low-, or
moderate-income households in the jurisdiction' s
housing element if the housing development
project is consistent with the density specified in
the housing element, even though the housing
development project was inconsistent with both
the jurisdiction' s zoning ordinance and general plan
land use designation on the date the application
was deemed complete.
ii. ( B) If the local agency has failed to identify a zone or zones where emergency shelters are allowed as
a permitted use without a conditional use or other
discretionary permit, has failed to demonstrate
that the identified zone or zones include sufficient
capacity to accommodate the need for emergency
shelter identified in paragraph ( 7) of subdivision ( a) of Section 65583, or has failed to demonstrate that
the identified zone or zones can accommodate at
least one emergency shelter, as required by
paragraph ( 4) of subdivision ( a) of Section 65583,
then this paragraph shall not be utilized to
disapprove or conditionally approve an emergency
shelter proposed for a site designated in any
element of the general plan for industrial,
commercial, or multifamily residential uses. In any
action in court, the burden of proof shall be on the
local agency to show that its housing element does
satisfy the requirements of paragraph (4) of
subdivision ( a) of Section 65583.

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
f. A CUP does not fit this five point analysis.
b. Item 3—" CEQA: Clarify whether the applicant team anticipates providing any technical studies related to environmental analysis ( traffic, habitat, cultural, air quality, noise, soils etc.) for peer review by the Town Environmental Consultants.

If not provided, the studies determined to be required by the Environmental Consultant will be prepared by the Town Environmental Consultants at the cost of the applicant. • You previously indicated via email that your team will prepare an Arborist Report and Traffic Study. Please confirm. Additionally, an email was forwarded to your team on 9/ 13/ 24, requesting some additional information in the Phase I ESA and the Noise Report. Please provide a response. • The response letter uploaded in July 2025 states that, " under the new laws passed, CEQA no longer applies to this project." Please specify which CEQA exemption you believe applies to this project, and provide substantial evidence that the project meets each requirement of the exemption. Staff will then review to determine eligibility.
i. This item has already been addressed in my letter dated September 17, 2025, a courtesy copy of which is attached hereto as Exhibit 1. ii. I will also note, to the extent that the Town wishes to attempt to seek additional reports on environmental matters that would be addressed in the CEQA process, those reports are now unnecessary as this project is CEQA exempt.
c. Item 4—" CEQA: Staff is coordinating with Town Environmental Consultants to determine what environmental analysis will be required for the project.

Environmental analysis is required at cost to the applicant. Staff will require payment of a deposit at a future date. • The response letter uploaded in July 2025 states that, " under the new laws passed, CEQA no longer applies to this project." Please see response to# 9 above."
i. This item has already been addressed in my letter dated September 17, 2025, a courtesy copy of which is attached hereto as Exhibit 1. ii. I will also note, to the extent that the Town wishes to attempt to seek additional reports on environmental matters that would be addressed in the CEQA process, those reports are now unnecessary as this project is CEQA exempt.
d. Item 5—" Review by the Town' s Consulting Arborist is required to provide a peer review of the arborist report submitted by the applicant. A deposit payment of 2, 750 is required. • This continues to remain outstanding." i. The primary issue is that the standards of review for the Town Arborist are, by their very nature, discretionary.

1. According to Section 29. 10. 0990 of the Town' s Municipal Code, Standards of review.

2. The Director or deciding body shall review each application for a tree removal permit required by this division using the following standards of review. The standards of review are intended to serve as criteria for evaluating tree removal requests and the basis upon

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
which the Director or the deciding body will subsequently determine whether or not one ( 1) or more of the Required Findings listed in section 29. 10. 0992 can be made. ( 1) The condition of the tree or trees with respect to: ( a) disease, ( b) imminent danger of falling, ( c) structural failure, ( d) proximity to existing or proposed structures, ( e) structural damage to a building, or (f) a public nuisance caused by a tree. The International Society of Arboriculture (ISA) Best Management Practices for Tree Risk Assessment shall be used where
appropriate in determining a Tree Risk Rating.( 2) The condition of the tree giving rise to the permit application cannot be reduced to a less than significant level by the reasonable application of preservation, preventative measures or routine
maintenance.( 3) The removal of the tree( s) will not result in a density of trees or tree cover that is inconsistent with the neighborhood.( 4)The number of trees the particular parcel can adequately support according to good urban forestry practices, or whether a protected tree is a detriment to or crowding another protected tree.( 5) In connection with a proposed subdivision of land into two (2) or more parcels, the removal of a protected tree is unavoidable due to restricted access to the property or deemed necessary to repair a geologic hazard ( landslide, repairs, etc.).( 6) Except for properties located within the hillsides, the retention of a protected tree would result in reduction of the otherwise- permissible building envelope by more than twenty-five 25) percent.( 7)The Hillside Development Standards and
Guidelines.( 8) Removal of the protected tree(s) will not result in a substantial adverse change in the site' s aesthetic and biological significance; the topography of the land and the effect of the removal of the tree on erosion, soil retention, or diversion or increased flow of surface waters.( 9) Whether the Protected Tree has a significant impact on the property. Significant impact from a tree is defined in section 29. 10. 0955. Definitions.( 10) The species, size ( diameter, canopy, height), estimated age and location on the property of the protected tree"

3. However, with Builder' s Remedy projects all discretion must be exercised in favor of the approval and provision of housing. ( Gov.

Code § 89( a)( 2)( L).) Therefore, any discretion must be exercised in favor of the project, meaning that the consulting arborist review is both irrelevant and improper.

4. As the Town cannot create new standards to apply to the project after the submission of the SB330 Preliminary Application under Government Code Sections 65941 et seq., the Town' s Arborist

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
cannot perform the discretionary review called for in the Town' s Municipal Code.
e. Item 6—" Review by the Town' s Consulting Architect requires payment of a 8, 250 deposit. • This continues to remain outstanding." i. The primary issue for this requirement is that it is unsupported by my review of the Town' s Municipal Code. I did not find any reference to a requirement that the Town' s Consulting Architect be retained to review the project.
ii. The second issue is that any review of the project is limited to the Town' objective design standards in place at the time of the submission of the SB330 Preliminary Application. ( Gov. Code § 65589. 5( f).) Review of the objective design standards is traditionally the purview of the Planning Staff, not an outside architectural consultant. If you contend that the Town' s Consulting Architect is the party conducting the Town' s objective design standard analysis, please provide the following:

1. The statutory authorization delegating that power to the Town' s Consulting Architect; and

2. The contract for the Town' s Consulting Architect showing that his/ her duties include the review of projects for objective design standards.
f. Item 7—" Please reach out to all necessary outside agencies and neighboring properties regarding this project( Caltrans, VTA, FAA for the helipad, etc.). • plan. review@vta. org • This remains outstanding. The July 2025 response letter says that VTA communication has already been provided. Staff has not been provided with this information. Staff reached out to VTA, who provided comments on 5/ 29/ 25, which were forwarded to your team. Provide a response letter to VTA' s comments, explaining what has been addressed." i. There is no helipad on this project, so the FAA is irrelevant. ii. My clients have already posted all required signage regarding the development providing notice to the neighbors. Please send us any statutory authority for additional requirements regarding noticing the neighbors.
iii. As to Caltrans and VTA, traffic impacts are part of the CEQA analysis. This item has already been addressed in my letter dated September 17, 2025, a courtesy copy of which is attached hereto as Exhibit 1. iv. Finally, there does not appear to be a basis for imposing exactions from Caltrans and VTA. The VTA' s own admission in its email dated May 29, 2025 that it is not providing ADA compliant facilities two blocks away from my client' s project does not obligate my client to pay for the VTA coming into compliance with the ADA. Please provide any basis for imposing this exaction on the project.
g. Item 8—" Below Market Price Units: The floor plans and the " Project Description/ Letter of Justification" need to specify which units are Below Market Price ( BMP) and specify how compliance with the Town' s BMP requirements are

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
met. Detailed floor plans for each unit must be provided. The letter should respond to each of the four characteristics listed in Section III below, and the plans should contain enough information so that staff can determine that the size of units are compatible with the market rate, that the location of BMP units are dispersed throughout the proposal, that the exterior appearance be indiscernible from the market rate units, and that all project facilities and amenities be available to the BMP units. Pursuant to the Town' s Below Market Price Housing Program, Section III ( Characteristics of BMP Units): A. Size of units: BMP dwelling units should to the extent possible, be consistent with the market rate units in the project. The Town and developer may negotiate regarding the size of units if more units than required are to be provided. BMP units should be provided proportionately in the same unit type mix( number of bedrooms) as the market rate units. In consideration of the household size of the households on the current program interest list, the Town and developer may negotiate to provide a greater proportion of a particular unit type. There should to the extent possible, not be a significant identifiable difference between the BMP and market-rate units visible from the exterior. The size and design of the BMP units should to the extent possible, be consistent with the market- rate units in the development. The goal of the BMP Program is for a seamless integration of the BMP units with the market- rate units in a development. B. Location of units: BMP units shall be dispersed throughout the development, to the extent feasible, in all buildings, on each floor, and in each project phase. A concentration of BMP units in one location is not desirable and will generally not be allowed. C. Finish of units: The external appearance of BMP units should be indiscernible to that of the market rate units in the project. The internal finish of BMP units should be identical to that of the market rate units in the project, except that the developer may request Town approval of substitutions for luxury interior finishes, appliances, or fixtures, if such substitutions do not violate any Town code requirement. D. Project Facilities: All project facilities and amenities, including parking, must be available on the same basis to the BMP units as to the market rate units in the project, to the extent feasible, unless the deciding body approves a reduction in parking for the BMP units. • This remains outstanding.

The Project Description/ Letter of Justification does not mention the Town' s BMP program. If the Town' s BMP program would not be complied with regarding BMP unit size or other standards, please provide the justification for this deviation." i. The Town' s BMP program is superseded by the California State Housing Laws for this project, including the Housing Crisis Act, the Housing Accountability Act, the Permit Streamlining Act and the related measures.

Cal. Const. Art. XI, Sec. 7.) Therefore, the Town' s BMP program is irrelevant to this project.
h. Item 10—" Project Description/ Letter of Justification: ( Updated 7/ 17/ 25)- Staff is requesting that this information be included in the revised " Project Description/ Letter of Justification". • See comment above regarding BMP information included in the letter. The letter needs to also specify the exact

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
number of proposed BMP units ( not a percentage). • This continues to remain outstanding (BMP information). The July 2025 response letter says that this was included in the plans. However, staff is asking for a written statement in the Project Description/ Letter of Justification. If the Town' s BMP program would not be complied with regarding BMP unit size or other standards, please provide the justification for this deviation."
i. The Town' s BMP program is superseded by the California State Housing Laws for this project, including the Housing Crisis Act, the Housing Accountability Act, the Permit Streamlining Act and the related measures.

Cal. Const. Art. XI, Sec. 7.) Therefore, the Town' s BMP program is irrelevant to this project.

While my client is happy to work with the Town on any items that do not conflict with the State Housing Laws, these items do conflict with those laws and therefore are improper restrictions and exactions on the project.

Please confirm to me and my client that the Town will comply with the State Housing Laws and rescind the foregoing requirements.

Sincerely,
Richard B. Jacobs

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS

STAFF TECHNICAL REVIEW

PLANNING DIVISION
September 17, 2025
ITEM 4: 14288 Capri Drive
Architecture and Site Application S-24-044
Requesting Approval for Demolition of an Existing Commercial Building, Construction of a Multi-Family Residential Development (119 Apartment Units), Site Work Requiring a Grading Permit, and Removal of Large Protected Trees Under Senate Bill 330 (SB 330) on Property Zoned C-1. APN 406-30-016. CEQA Review is Pending.

PROPERTY OWNER: Los Gatos LLC.

APPLICANT: Kurt B. Anderson.

PROJECT PLANNER: Ryan Safty
LAST REVIEWED BY STAFF: 9/18/24, 1/8/25, 4/23/25, 8/14/25 SUBMITTAL DATE: 8/23/24
DETERMINATION: This planning application resubmitted to the Town on August 22, 2025, is deemed COMPLETE effective September 17, 2025. In conformance with Section 65589.5(j)(2), this letter provides written documentation identifying the applicable plans, programs, policies, ordinances, standards, requirements, and similar provisions that the project is inconsistent with, and the reasons the project is inconsistent.

The Town is currently seeking a judicial determination regarding the correct interpretation of Government Code Section 65941.1(e). Under the Town’s interpretation, the vesting provided by your preliminary application has expired prior to this completeness determination.

However, if requested by you, the Town will continue to process this planning application, at your own risk, under the vesting provided by your preliminary application, pending a judicial determination regarding the effect of Government Code Section 65941.1(e) upon any vesting provided by your preliminary application.

The following comments apply to the most recent submittal. Resubmittal of plans and application materials to address inconsistencies noted herein is required. Comments that have been resolved are shown in strikeout, additional notes are provided in green for those that remain outstanding.

When resubmitting, please continue to provide the Town with two printed, full-sized plan sets (24” by 36”).

ATTACHMENT 4

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
ENVIRONMENTAL: CEQA review is pending.

SUBMITTAL NOTE: The July 2025 resubmittal documents erroneously refer to the “New Residential Submittal Requirements” as the appropriate application package and submittal requirements to follow. This is not the application package for a discretionary planning application. Instead, this is a Building Permit Application submittal guide. If you click on the link to the (incorrect) application package which your letters refer to, “New Residential Submittal Requirements”, you will see the following:
https://www.losgatosca.gov/DocumentCenter/View/23918/New-Residential-SubmittalRequirements-and-Application-PDF?bidId= The correct application package, which is what your team signed and submitted when applying for this application, can be found via the link below.
https://www.losgatosca.gov/DocumentCenter/View/361/Development-Review-ApplicationPackage-PDF?bidId= PROJECT DEFICIENCIES RELATED TO APPLICATION COMPLETENESS: NONE

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
CONSISTENCY ISSUES: While conducting the completeness review of your planning application, staff had previously identified consistency issues that were observed and had provided them as “courtesy consistency comments” while the application was incomplete.

The following list constitutes the Consistency Review for Planning, in conformance with Section 65589.5(j)(2). Items underlined are new (consistency) comments based on new information provided as part of the July and August 2025 resubmittal to the Town. Although a resubmittal occurred in August 2025, only the outstanding completeness items were addressed and no response letters were received, so these consistency comments from August 14, 2025, remain outstanding.

PROJECT CONSISTENCY RELATED ITEMS: LETTERS
1) Multi-Family Residential is not a principally permitted use (or an allowed conditional use) in the C-1 zone. The C-1 zone allows “multiple-family dwelling (in a mixed-use project)” with a conditional use permit. You must apply for a Conditional Use Permit, and request that the “mixed-use” component of the be removed as a part of the application. • Contact project planner when you are ready to pay the CUP fee, and staff will invoice.

Please also confirm if you will be paying by check or credit card. • Previous deficiency comment moved to consistency.
• This remains outstanding. The fee is now $3,524.26 based on the Town’s new fee schedule. See the Town’s letters from March 3, 2025, and May 27, 2025, addressing this comment and applicant responses in detail. The application materials continue to make the same argument, without responding to the Town’s responses. • The response letter submitted on July 18, 2025, as well as the letter from the Law Office of Richard Jacobs dated May 16, 2025, state that this requirement is not in the “New Residential Submittal Requirements.” As noted in the staff’s response to the May 16, 2025, letter, the “New Residential Submittal Requirements” is not the Town’s submittal checklist for a discretionary planning application. The “New Residential Submittal Requirements” is a checklist for Building Permit submittals. 2) Provide photographs of the existing development on-site. The photographs on the plans just show street views (Google) and do not include the interior of the lot and existing structures and sheds.
3) CEQA: Clarify whether the applicant team anticipates providing any technical studies related to environmental analysis (traffic, habitat, cultural, air quality, noise, soils etc.) for peer review by the Town Environmental Consultants. If not provided, the studies determined to be required by the Environmental Consultant will be prepared by the Town Environmental Consultants at the cost of the applicant.
• You previously indicated via email that your team will prepare an Arborist Report and Traffic Study. Please confirm. Additionally, an email was forwarded to your team on

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
9/13/24, requesting some additional information in the Phase I ESA and the Noise Report. Please provide a response.
• The response letter uploaded in July 2025 states that, “under the new laws passed, CEQA no longer applies to this project.” Please specify which CEQA exemption you believe applies to this project, and provide substantial evidence that the project meets each requirement of the exemption. Staff will then review to determine eligibility. 4) CEQA: Staff is coordinating with Town Environmental Consultants to determine what environmental analysis will be required for the project. Environmental analysis is required at cost to the applicant. Staff will require payment of a deposit at a future date. • The response letter uploaded in July 2025 states that, “under the new laws passed, CEQA no longer applies to this project.” Please see response to #9 above. 5) Review by the Town’s Consulting Arborist is required to provide a peer review of the arborist report submitted by the applicant. A deposit payment of $2,750 is required. • This continues to remain outstanding.
6) Review by the Town’s Consulting Architect requires payment of a $8,250 deposit. • This continues to remain outstanding.
7) Please reach out to all necessary outside agencies and neighboring properties regarding this project (Caltrans, VTA, FAA for the helipad, etc.).
• [email protected]
• This remains outstanding. The July 2025 response letter says that VTA communication has already been provided. Staff has not been provided with this information. Staff reached out to VTA, who provided comments on 5/29/25, which were forwarded to your team. Provide a response letter to VTA’s comments, explaining what has been addressed.
8) Below Market Price Units: The floor plans and the “Project Description/Letter of Justification” need to specify which units are Below Market Price (BMP) and specify how compliance with the Town’s BMP requirements are met. Detailed floor plans for each unit must be provided. The letter should respond to each of the four characteristics listed in Section III below, and the plans should contain enough information so that staff can determine that the size of units are compatible with the market rate, that the location of BMP units are dispersed throughout the proposal, that the exterior appearance be indiscernible from the market rate units, and that all project facilities and amenities be available to the BMP units. Pursuant to the Town’s Below Market Price Housing Program, Section III (Characteristics of BMP Units):

A. Size of units: BMP dwelling units should to the extent possible, be consistent with the market rate units in the project. The Town and developer may negotiate regarding the size of units if more units than required are to be provided. BMP units should be provided proportionately in the same unit type mix (number of bedrooms) as the market rate units. In consideration of the household size of the households on the current program interest list, the Town and developer may negotiate to provide a greater proportion of a particular unit type. There should to the extent possible, not be a significant identifiable difference between the BMP

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
and market-rate units visible from the exterior. The size and design of the BMP units should to the extent possible, be consistent with the market-rate units in the development. The goal of the BMP Program is for a seamless integration of the BMP units with the market-rate units in a development.

B. Location of units: BMP units shall be dispersed throughout the development, to the extent feasible, in all buildings, on each floor, and in each project phase. A concentration of BMP units in one location is not desirable and will generally not be allowed.

C. Finish of units: The external appearance of BMP units should be indiscernible to that of the market rate units in the project. The internal finish of BMP units should be identical to that of the market rate units in the project, except that the developer may request Town approval of substitutions for luxury interior finishes, appliances, or fixtures, if such substitutions do not violate any Town code requirement.

D. Project Facilities: All project facilities and amenities, including parking, must be available on the same basis to the BMP units as to the market rate units in the project, to the extent feasible, unless the deciding body approves a reduction in parking for the BMP units.
• This remains outstanding. The Project Description/Letter of Justification does not mention the Town’s BMP program. If the Town’s BMP program would not be complied with regarding BMP unit size or other standards, please provide the justification for this deviation.
9) Contact the garbage and recycling service provider to ensure the trash rooms and trash pickup (once shown on the plans) are adequately sized for the proposed uses and that they have adequate access for pick up. Provide correspondence from provider. 10) Project Description/Letter of Justification: (Updated 7/17/25) - Staff is requesting that this information be included in the revised “Project Description/Letter of Justification”. • See comment above regarding BMP information included in the letter. The letter needs to also specify the exact number of proposed BMP units (not a percentage). • This continues to remain outstanding (BMP information). The July 2025 response letter says that this was included in the plans. However, staff is asking for a written statement in the Project Description/Letter of Justification. If the Town’s BMP program would not be complied with regarding BMP unit size or other standards, please provide the justification for this deviation.
• The Existing Property Description states that the property is located at the southwest corner of Winchester and Highway 85. This is not accurate. The property is north of the intersection.
• The Existing Property Description states that the project is surrounded on three sides by streets and parking. This is not accurate. It is surrounded on two sides by streets, and the third side is an existing residence.
• The letter states that, “the exterior façade incorporates stone and [….],” yet stone is not shown in the plans.
• Clarify if the rooftop uses are exclusively for the residents, or if they are also available to

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
the public and provide a summary of the roof top uses.
• Provide details on how the mechanical parking spaces will work. i. Are the spaces going to be used exclusively for residents? Will someone need to be on-site to maintain them? How do you ensure someone’s car is not blocking you in? Are some of the spaces reserved for the leasing office? • Provide justification for the helipad, which is a prohibited use per Town Code Section

29.10.045.
• If no commercial or public uses are proposed, this multi-family residential use is not allowed in the C-1 zone (whether principally permitted or a conditional use). Provide justification.
• Update the “Compliance with the Objective Design Standards” based on staff’s markups.

It is not accurate.
• The letter states that each residential level has the same number of units and unit types.

That is not accurate. Level 12 is different from the others. • This continues to remain outstanding. The July 2025 response letter says that this was updated to state that levels 5 through 11 have 15 units and that level 12 has 14 units. The letter continues to say the following: “There are eight stacked residential levels which are comprised of five studios, 7 one-bedroom units, 2 two-bedroom units and 1 three-bedroom unit per level,” but doesn’t explain the configuration of level 12.
• The letter says that all units have exterior balconies that exceed the Town’s requirements. That is not accurate. The juliet balconies are much smaller than the required 60 square feet per unit.
• The plans and response letter refer to guest parking, reserved unit parking, and office parking. Please provide a statement within the letter to how this will work. Do the larger units get additional spaces, or are not all of the resident spaces “reserved”? • This remains outstanding. The question will come up at public hearings (as with other projects). 181 stalls are proposed for the 119 residential units. Does your team know how these will be distributed? If so, please specify in your letter. • Specify which Town Requirements are not being complied with for this project. • The July 2025 letter now includes a list of (some) of the items that are not being complied with, but only the ones from the Objective Design Standards checklist.

Note: Town Code and the General Plan also include objective standards. Please include all of the exceptions; such as: max lot coverage (General Plan and Town Code), max building height (General Plan and Town Code), max density (General Plan), max FAR (Town Code), max height (Town Code), setbacks (Town Code), culde-sac radius (Town Code), parking garage minimum turn radius (Town Code), allowed uses (Town Code), etc. Ensure that all items listed as not compliant (marked “no”) in the Objective Design Standards checklist are included here. • Provide basic project information (lot size, building size, existing building size to be demolished, proposed use, height, etc.).

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
• The letter should speak to how the project complies with the 2020 General Plan Land Use and Community Design elements.
• This comment remains outstanding. We understand your team’s position that General Plan conformance is not required. However, staff is asking that this information be included in the Letter of Justification. • The letter should speak to the required conditional use permit findings per the Town’s application package.
• The letter should speak to the structural condition of the (previously) residential structure per the Town’s application package.
• The letter now erroneously refers to the “New Residential Submittal Requirements” as the appropriate application package and submittal requirements to follow. This is not the application package for a discretionary planning application. Instead, this is a Building Permit Application submittal guide. If you click on the link included in your letter, you will see that this is referring to Building Permit submittals. • Some of the plans now show a turning radius along the cul-de-sac that is below the Town requirement 32 feet. If this is proposed, justification is needed here to ensure that adequate space is provided for cars and emergency vehicles. See comment from Santa Clara County Fire on this item.
• The revised letter now states that CEQA is not required. Please see earlier responses to #9 and #10 above.
• The revised Proposed Development Description section refers to a new landing pad, which has been removed from the proposal based on the latest plans. Remove mention to the landing pad from the Proposed Development Description. • The Compliance with the Objective Design Standards Section states that the application is meeting VTA’s short-term parking recommendation. Specify what VTA’s recommendation is. Per the cover sheet of the plans, VTA’s recommendation is 1 space for every 20 stalls for GUEST bike parking. What do they recommend for the tenants? • The Compliance with the Objective Design Standards Section states that the “items that do not comply are addressed below.” The second item listed (long-term bike parking) states: “we are in compliance.” As noted in the Objective Design Standards Checklist, the required number of bike spaces is complied with, but the location is not. Update accordingly.
• Justification for Item A.3.4 is not applicable. The justification is related to the number of spaces required (which should be A.3.2). A.3.4 refers to dimensions of bike rooms, which also needs separate justification as the height is not complied with in Diagram 8. 11) Objective Design Standard Checklist: The Objective Design Standard Checklist is incomplete and was filled out incorrectly. Please see attached for staff’s comments. When resubmitting, please follow the format provided in staff’s comments. The Excel document can be provided to you upon request, and there is a column for the applicant’s response. Additionally, when

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
noting the sheet that the objective standard is located on, ensure that the level of specificity is also detailed on the sheet for staff to verify the project’s compliance. Describe how each Objective Design Standard is being achieved. Provide exhibits, details, and dimensions in planning set as necessary to illustrate and quantify how each applicable standard is achieved.
• This remains outstanding. A large portion of the previous comments were successfully addressed, but staff still needs additional details (see attached updated ODS Checklist).

When responding “no” to any of the items, please provide brief justification within the “applicant response” section. Alternatively, a separate letter of exceptions can be submitted which provides this justification.
12) Provide response letters to the Town’ review letters. No responses provided this last round.

PROJECT CONSISTENCY RELATED ITEMS: PROJECT PLANS
Cover Sheet:
13) Project Details:
• Dedication appears to be required. Specify existing and proposed lot size (before and after dedication).
• Specify the existing building size and use.
• Specify the size of the office/leasing area.
• Specify existing and proposed lot coverage.
• Specify existing and Correct the proposed floor area ratio. • Specify number of BMP units and what affordability level they are. 14) Project Summary:
• Specify the size and height of the existing structures to be removed. 15) Gross Building Floor Area per Floor:
• Provide a separate column which shows the countable floor area of each floor (removing the balconies and decks).
16) Parking Table:
• Specify if any of the spaces are reserved. Does each unit get reserved spaces? Are there any spaces for the leasing office and employees?
17) Bicycle Parking:
• Use the same terminology that the Town uses (“Short-Term vs “Long-Term”), differentiating the types and number of spaces provided. 18) Open Space:
• Use the same terminology as the Town (“Landscape area”, “Private Recreation Space”, “Community Recreation Space”).
• Specify the proposed amount of each area, and highlight each area on the plans. The “provided private open space” section is blank.
19) Project Summary:

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
• The total height of the building is 163’-4” per Sheet A7.0, not 154’. The plans need to consistently show this maximum height.
20) Add the dedicated office parking spaces to the Vehicle Parking Requirement & Provided section so that the numbers match (158 vs 160 spaces).
21) The Unit Data table contains a “total” column that is unclear. Specify what “total” this is showing. If it is floor area, the math is wrong. This table is on several sheets. 22) The required parking shown is wrong (Town Code requires 300 spaces). • This continues to remain outstanding. The plans say “required parking”, implying that the Town’s standard parking requirement is not 300 spaces. Please also add a line for “Town’s required parking”. If the intent here is to use a different parking requirement (i.e. per State Density Bonus Law), please clarify. As of now, the statement appears to be saying that the Town Code requirement is 145 spaces, which is not accurate. • The response letter claims that Town Code does not require 300 spaces. See Town Code parking breakdown below:
i. 1.5 parking spaces per unit = 179 spaces
ii. 1 visitor parking space per unit = 119 spaces
iii. Office parking is 1 space/235 sf = 2 spaces
iv. Total = 300 spaces
23) Enclosed bike parking within the parking garage is “long term”, not “short-term”. Update the provided bike parking totals accordingly.
24) The Gross Building Floor Area Per Floor table shows levels 6-12 being 19,674 sf. The floor plans show 19,643 sf. Update accordingly.
25) Please update all renderings to show trees at time of planting, or add a note stating how long it will take the trees to get to this size. It seems unlikely that the palm trees on Capri Drive will be 30+ feet tall at time of planting.
26) The existing building height that was added this last round does not match the existing height shown on the survey sheet.
27) The proposed floor area ratio that was added this last round is incorrect. It should be roughly 10.5 (244,951/23,225).
28) The proposed parking counts table do not match the numbers shown throughout the floorplans. Please ensure consistency throughout plan sheets. • This remains outstanding. The table shows 187 spaces, yet the Project Details to the left show 188 stalls. It appears the error stems from the Parking Stalls Provided table, as level 1 is shown with a total of 102 spaces, yet DG0.1 shows 102 spaces here. 29) The proposed setbacks that were added are incorrect. The proposed side yards per Sheet A2.0 are roughly 16’ and 1’. The cover sheet shows 0’.
30) The required setbacks that were added are incorrect. The required front setback along Capri is 175’ (see Town Code for additional height requirements when a building is across the street from a residential zone and over 20 feet in height). The rear setback along Winchester is 15’ (see Town Code definition of “through lot”). The required side setbacks are 0’.

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
• This remains outstanding. The response letter says that this is a Builder’s Remedy project and that setbacks don’t have to be met. That said, your plans list “required setbacks” which are not consistent with the Town’s requirements. Revise accordingly. 31) The Total Grand Floor Area (275,197) does not match the Gross SF Grand Total (274,980 sf) in the table below.
• This remains outstanding as these totals are still not consistent in the plans. The updates now show total countable floor area as both 244,951 sf and 242,612 sf, and show the total gross sf as both 274,536 sf and 272,808 sf. The plans need to be consistent. • Note that in the Floor Area Table, the basement should not be included in the “countable sf”.
32) Please add the Town’s required bike parking to the Bicycle Parking Table that was added. • This remains outstanding. The table currently doesn’t make sense. The table shows the Town’s requirement (1 per unit) and then shows the VTA’s recommended guest bike parking (1 per 20 units) for a “total required” of 125, when the Town requires 119. It would be helpful if you could use the Town’s standard language “short-term” vs “longterm”. Is VTA’s guest parking requirement supposed to supplement the Town standard for short-term bike parking?
• Additionally, the “long-term (residence)” bike parking shows 126 at levels 1 though 4, while the counts on DG0.1 and DG0.2 add up to 138.
33) Project Summary: ensure the existing (14’ vs 16’) and proposed (167’ vs 171’) building heights listed in this table are consistent with the heights shown in the plans. 34) The landscape area table does not match what is shown in the landscape plans. 35) Update the submittal dates on the title sheet to reflect this August 22, 2025, submittal.

Old Sheet C1.0 (New Sheet C2.0):
36) Label existing setbacks.
37) The survey shows an existing 4,292 sf building to be removed. Based on Google Maps, County Assessor’s office, and site pictures, the existing building is closer to 2,100 sf and there are several sheds at the rear of the site. Update the survey accordingly. 38) The existing tree table is missing information (see submittal item comments above). • This continues to remain outstanding. See comments above regarding height. 39) Provide a legend for the symbols and abbreviations used. 40) All trees with canopies within 30’ of construction shall be included in the tree inventory and on this sheet. The neighbor trees at 14274 Capri Drive are missing. Also label the (what appears to be) shrubs along Winchester Boulevard.
41) The arborist report, once updated per comment above, needs to provide protection recommendation for the missing trees.
42) Ensure driplines are included for all trees identified. For example, trees 9 and 10 don’t have driplines/canopies shown, and there are some canopies shown that aren’t numbered. 43) Who owns Tree 31? (town or neighbor?)
44) Specify which of the trees are considered fruit-bearing. Now that canopy spread and tree height was provided, staff calculated the tree replacement requirement as being (108) 24”

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
box trees or (54) 36” box trees. As proposed, only (23) 36” box trees are proposed, which would be short of the requirement by (31) 36” box trees or (62) 24” box trees. This would require an in-lieu payment of $15,500 per Town Code. However, several of these trees may be exempt from the replacement requirement if they are determined to be “fruit-bearing” (Trees 10, 17, 20, 21, 26, 27, 30-36, and 39). This could drastically reduce the in-lieu fee.

Old Sheet C2.0 (New Sheet C3.0):
45) Utilities are shown overhead. Confirm with PPW if they will require undergrounding. 46) The Earthwork Notes show Maximum site fill = 0’. The plans show 275 cubic yards of fill, which means that more than 0’ of fill are proposed. Be more specific with your information. 47) Show the dedication area and include dimensions and total area. 48) Provide an additional section running through the length of the site. 49) Dimensions the property boundaries.
50) Dimension the sidewalks, curbs, roadways, etc (plans must be fully dimensioned). 51) Show traffic direction on the streets.
52) Specify location of the fill area (this should also be labeled in the civil sections). 53) Provide details on the “temporary loading/staging zone”. The arrow is pointing to the sidewalk.
54) Would any physical barrier be proposed between the southern edge of the cul-de-sac and Winchester Blvd?
55) There is a “proposed driveway” note on 14333 Capri Drive. 56) Put an “X” on the (visible) trees that are proposed for removal. 57) The sidewalk around Tree 1 shows the bulb-out encroaching into the bike lane to remain.

Sheet C1.0 shows this being removed. Ensure the plans are consistent. 58) Provide a legend for the symbols and abbreviations used. 59) The area to the north of the building would create a dead-end area (see area highlighted below). Consider fencing this area off so as not to create a safety issue. 60) Please provide the following setbacks (see below).
61) The plans now show a dog park and fenced area at the southern end of the cul-de-sac. On this sheet, the site plan, or the landscape plan, provide additional details (fence height, design, lighting, landscaping, etc.). Please also ensure that coordination with Parks and Public Works continues to occur as this is proposed within the Town’s right-of-way. • The response letter says that the dog park has been removed from the proposal, yet the landscape plans still show it.
62) Now that the arborist report shows recommended tree protection, show it on this sheet or note it somewhere in the plan set.
63) Dimension the depth of the roof overhang, noted as “Outline of Floor Above.” 64) The bulb out along Winchester has been removed, but (what appears to be) a driveway approach is now shown, which would lead to a 13-story wall. Please confirm what is proposed here.

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
• This remains outstanding. See screenshot below.
65) Please specify estimated location of construction staging here or somewhere in the plan set. 66) Specify the surfacing materials of the parking garage. • Previous deficiency comment moved to consistency. Please specify these materials.

New Sheet C3.1:
67) Remove the scale at the bottom of the sheet as it is not accurate. 68) Show existing and proposed grade lines, noting areas of cut and fill (and labeling the cut and fill depths).

Old Sheet C3.0 (new Sheet C4.0):
69) The total site area is shown here as 29,305 sf, while the rest of the plans show 23,225 sf. 70) Specify the percent of increase/replacement.

New Sheet DG0.1:
71) This sheet shows a 19’ ceiling height in Level 1, the section shows 16’, and the floor plan on A3.0 shows 15’.
72) The plans say 58 “guest bicycle parking” proposed. Use the correct terminology (“shortterm”) and correct the number (12 are proposed; the indoor spaces are long-term). 73) The short-term/guest parking spaces would block the sidewalk. Revise accordingly. 74) Provide details of vehicular gate (50% open rule).
75) Specify ceiling height in the bike rooms.
76) Label widths of pedestrian entrances.
• This remains outstanding. The door to the parking garage (north of the mail room) is not dimensioned.
77) Provide details of the long-term bike parking for compliance with the Objective Design Standards.
78) Put an “X” on the (visible) trees that are proposed for removal.

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
79) There is a miscellaneous double line adjacent to the angled parking stall in Level 1. 80) Keynote 4 says that ground mounted utility cabinets will be screened. The plans (perhaps the Landscape plan) need to show this detail.
• This remains outstanding. The plans do not specify height of utility cabinets. See related comments in ODS checklist. You can estimate the height for now. 81) Please fix the setback annotations that are blocked by trees. 82) Specify how far the entrances are recessed per related comments on ODS Checklist. • This remains outstanding. The door to the parking garage (north of the mail room) is not dimensioned. The other entrances were added.
83) Specify how far the building steps-in as it transitions from the lobby to the parking garage along Winchester related comments on ODS Checklist.
84) A new parking area is shown on Capri Drive but the call-out is covered. 85) New Floor Plan Note 2 provides a good response/justification for the short-term parking requirement exceptions. Please provide this in the ODS Checklist response or in the justification letter as requested.
86) Add the north arrows back to this sheet. They were removed in this submittal. 87) The long-term bike parking was modified, and now the floor plan note is not legible. It appears to show 32 spaces, while the table shows 34. Update accordingly. 88) A dashed green line was added and dimensioned (30’) adjacent to the leasing office, but it is not labeled. Staff does not know what this is showing.
89) The “R” numbers throughout the parking areas no longer add up. For example, the numbers go from “R1 thru R19” and then jumps up to “R25 thru R49.” The numbers were changed in this submittal and are no longer accurate.
90) Please note that the math provided for Floor Plan Note 2 is not accurate. It notes that “119 x 20 = 5.96”.

New Sheet DG0.2:
91) Floor plan note 1 says there are 120 long-term bike parking spaces, when there are 166. 92) Floor plan note 2 says to see detail DG0.1/3 for long term bike parking details. Detail DG0.1/3 is a short-term space.
93) Plans were updated and now the long term bike parking notes are inconsistent. Ensure that in each table below, the floor plan matches the actual floor plan. For example, Level 3 floor

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
plan table shows 52 long term bike spaces, while the call-out notes show 32 and 24 (56 total), and the call-out for 24 bike spaces is pointing to bike room 3, which shows 20 bikes.

Similarly, Floor Plan Note 1 needs to be updated as the updated count is no longer 140, and bike parking is proposed on the first floor and not just levels 2-4. See below screenshot. 94) A new “continuous wheel stop see note 2” call-out was added, but note 2 does not correspond to wheel stops. Update accordingly.
95) A new “sunshade device outline” call-out was added, but the dimension is not noted.

Specify how far it overhangs beyond the wall.
96) The dimensions for the southernmost architectural awning (above the lounge) are not accurate. The dimensions measure to the property line, and this awning does not extend that far.

New Sheet DG0.3:
97) Floor plan note 2, “total private space provided” is blank. Please note that the rule states that each unit needs 60 square feet. This is not complied with. 98) What do the following numbers represent? (see below). 99) Provide a scale.
100) As noted above, specify location of BMP units somewhere in the plans. 101) The common open space note was updated on Sheet A3.0 and the Cover Sheet, but not this sheet.
102) New notes are added to the floor plans for Level 5 and Levels 6-11 that show building sizes that do not match the tables directly below. Revise accordingly. See below for an example.

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
New Sheet DG0.4:
103) Label the proposed areas in the terrace plan.
104) Add the following to Note 1, “the mechanical equipment will be shorter than the proposed roof screen.”
105) A new “metal screen tall fence” call-out is shown along the play-court. Specify the height and design somewhere in the plans.
106) New boxes are shown in the play-court which are not legible. What are these showing? Sheet A1.0:
107) Label the addresses of the properties shown.
108) You must also include pictures of the existing structure proposed for demolition. The pictures provided are from Google Streetview and do not show inside the property fence.

This is a submittal requirement.

Sheet A2.0:
109) Label or provide a legend for the public improvements shown outside of the building along Capri Drive.
110) Label the trees. Staff is assuming these are proposed. 111) Provide dimensions for the sidewalks (plans must be fully dimensioned). 112) Specify all setbacks, including the setback along the southern edge of the building. 113) Label and dimension the property lines.
114) The majority of the items in the O.S. checklist say they are complied with on this Sheet.

Anytime the O.S. checklist references this sheet, there should be annotations or dimensions that clearly show compliance.
115) Show the full extent of Winchester Blvd.
116) In the Site Data table, specify the lot size before and after dedication. 117) Show the required building setbacks. This is a submittal requirement (noted above). 118) The sidewalk around Tree 1 shows the bulb-out encroaching into the bike lane to remain.

Sheet C1.0 shows this being removed. Ensure the plans are consistent. 119) Several of the setback labels along Winchester Blvd are not legible. 120) Please provide the following setbacks (see below). 121) Fix the proposed and required setbacks as noted above in the Cover Sheet comments. • This remains outstanding. The response says that required setbacks were updated (which they weren’t), and the response references North 40. This is not a North 40 project.
122) Fix the FAR as noted above in the Cover Sheet comments. 123) Provide details of the proposed fencing here or somewhere in the plans. • This remains outstanding. Thank you for providing details for the metal panel fence; however, staff is still looking for location details for the 6’ tall concrete wall. 124) A new, Proposed Landscaping Calcs, table was added. The total shown (2,504 sf) does not match the totals shown throughout the rest of the plan set. Additionally, specify what “LA” refers to, as each area is numbered “LA1, LA2,…” etc.
125) Per Town Code Section 29.10.06702, minimum turning radius is 32’. This sheet shows that

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS

30.5’ are proposed. Ensure that the turning radius is consistent between the sheets, and if under 32 feet is proposed, include justification in the project description letter on how the proposed radius can accommodate cars and emergency vehicles. The letter currently just talks about the transformer location and the need for an easement. 126) The sheet says “(E) cul-de-sac.” There is no existing cul-de-sac at the site. 127) Specify the ROW width of the new cul-de-sac. Town code requires 42’. If this is not met, provide justification.

Sheet A2.1:
128) The revised cul-de-sac radius note (32’) does not match the rest of the plans. 129) The sheet says “(E) cul-de-sac.” There is no existing cul-de-sac at the site.

Sheet A3.0:
130) Provide dimensions throughout the parking garages (i.e. drive aisle, parking space dimensions, radius of angled spaces, turn-around area, turn radius, etc.). 131) Label and dimension the property lines.
132) Provide full road details (full extent of drive aisles, center line, etc.). 133) Per Town Code, dead end areas in a parking garage must have turn-around space approved by the Town Engineer. Each level of the parking garage has a dead-end area. 134) Provide details of the bike parking areas (what type of bike parking, number of spaces, individual bike lockers or one larger room, etc.). See the Town’s Objective Design Standards checklist for more detail.
135) Provide specific details for the mechanical parking lifts proposed (not just a factory spec sheet). You need to show how much room each parking lifts takes, and how the Town’s requirements for drive aisles are still complied with.
136) Label the size of the lease office area.
137) Specify if a vehicular gate is proposed. If so, provide details on design and location. 138) Level 1 is shown with a 19’ clear ceiling height, yet the elevation shows a 16’ plate height.

Which is accurate?
139) Show maneuverability of the angled parking stall (north-eastern corner of the garage) in relation to the two-way ramp immediately adjacent.
140) What is meant by “PIT PARKING”? Does this refer to the bottom of the mechanical lifts? 141) Show how trash pick-up will be accessed. Does the truck drive into the parking garage? 142) Per the spec sheet, the mechanical lifts have a stall depth of 18.3’, yet the plans only show 18 feet. Ensure that the lift spaces fit as shown.
143) Per the spec sheet, the only way to get a 3-parking space lift is to have some sort of tandem configuration. No tandem configuration is shown. Confirm that the 3 spaces per stall can work in this configuration.
144) Label the width of the vehicle entrance (each drive aisle). 145) Parking spaces adjacent to a wall (i.e. space 42) must be a minimum of 9.5’ wide. 146) Update the short term and long-term bike parking notes based on the comments on Sheet DG0.1.

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
147) Town Code requires one continuous curb for wheel stops. 148) Specify the height of the proposed concrete wall.
149) Parking stalls with a 60-degree angle (space 60) must have a depth of 19’-8” per Town Code. 150) There are two parking spaces numbered 61.
151) The front elevation shows a shade element/roof element over the door adjacent to the mail room. Show depth of overhang on this sheet per applicable ODS Checklist comments. • This remains outstanding. They are not shown or dimensioned on this sheet, but they were added to DG0.2. Update this sheet as well.
152) Specify how far the proposed prefab concrete wall extends. • This remains outstanding.
153) Show the Town’s standard double-striping in plans (see attached). • This remains outstanding. Would the mechanical lift spaces contain the double-striping? 154) There is a new note along the vehicular entry to the garage that says “slope”. Specify what the slope would be.
155) The Level 1 table shows 101 parking stalls, while the floor plans shows 97. The spaces shown adjacent to Stair 2 are shown as 24 spaces on this sheet, and 29 on DG0.1. Update accordingly.
156) Specify the exact location of the concrete wall. It is not clear if it extends all the way to the Capri Drive frontage (which would not be allowed).
• Previous deficiency comment moved to consistency.
157) A new bold line was added south of the building (see below). Specify what this is for.

Sheet A4.0:
158) Provide dimensions throughout the parking garages (i.e. drive aisle, parking space dimensions, radius of angled spaces, turn-around area, turn radius, motorcycle spaces, etc.). 159) Label and dimension the property lines.
160) Per Town Code, dead end areas in a parking garage must have turn-around space approved by the Town Engineer. Each level of the parking garage has a dead-end area.

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
161) Provide details of the bike parking areas (what type of bike parking, number of spaces, individual bike lockers or one larger room, etc.). See the Town’s Objective Design Standards checklist for more detail.
162) What is the purpose of a lounge within a parking garage? Perhaps you could include a brief explanation in the Letter of Justification.
163) Please note that the lounge areas count toward the Community Recreation Space requirement.
164) Level 4 has 31 total spaces (29 single stalls). The plans say 32 total spaces (30 single stalls). 165) Show maneuverability of the angled parking stall (north-eastern corner of the garage) in relation to the two-way ramp immediately adjacent.
166) Clarify if any of the spaces are reserved for employees or future tenants (leasing office). 167) The minimum inside turning radius in the parking garage is 20’ per Town Code. The plans show a turning radius of only 10-11 feet.
• This continues to remain outstanding and non-conforming. The turning radius shown does not comply. Explain how the reduced turning radius can accommodate auto movements within the garage and provide justification for the reduction. 168) Town code requires stalls to have “double striping”. See Town Code 29.10.155 for details.

This needs to be shown on the plans.
169) Specify if key access is provided for the bike rooms. 170) Provide details or notes on the continuous curb that is shown, ensuring compliance with Town standards.
171) New notes were added for the architectural metal awnings and sunshade device. Provide dimensions of each.

Sheet A4.1:
172) As the turn-around spaces have been reconfigured, show how parking space R1 (adjacent to the mail room) would back-out.

Sheet A4.2:
173) The turn-around exhibit for parking space R116 shows that the vehicle would need to drive outside of the building walls to make that turn. Revise accordingly.

New Sheet A4.3: (in the future, when adding a new plan sheet, please create a new page number since we are tracking comments per sheet number).
174) This sheet appears to be included to justify an exception to the minimum turning radius within a parking garage. Reference to this sheet should be included in your justification letter.
175) Include the centerline of the ramps. As drawn, it appears that a Ford Escape would extend beyond the drive aisle.

Sheet A4.4 (Previously Sheet A4.3):
176) Dimensions the bike storage length in Diagrams 3, 4, and 7 per ODS Standard A.3.4.e.

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
177) The bike arrangement in Diagram 1 would block the sidewalk and should be removed. The arrangement in Diagram 2 is what is shown on the plans. 178) Label the height of the bike racks in Diagram 8 for compliance with ODS Standard A.3.4.e. 179) The bike parking table says that 140 long-term spaces are located on floors 2-4, when they are actually located on floors 1-4.
180) Diagram 3 now shows two bike spaces adjacent to the workstand and pump station. Specify the dimensions and type of bike parking proposed here.

Sheet A5.1:
181) This sheet was included twice in the plan set.

Sheet A5.0:
182) Provide setback dimensions along the entire building. 183) Label and dimension the property lines.
184) Specify the size of each balcony and include dimensions so staff can confirm the “private recreation space” requirements are met.
185) Confirm that the unit sizes shown are not including the balconies. 186) Level 5 and Levels 6-12 look identical, yet the overall gross area is roughly 500 square feet different. Please confirm this is accurate. Again, decks don’t count as gross square footage. 187) Specify the corridor width.
188) Confirm what the shaded area of Level 5 represents (roof below?). 189) Why are the open space areas for Level 5 labeled as decks when they are above grade? 190) There are setbacks on Level 5 that are incorrect (i.e. 8’ setback shown several feet inside Unit A).
191) The Unit Data table contains a “total” column that is unclear. Specify what “total” this is showing. If it is floor area, the math is wrong. This table is on several sheets. 192) The Gross Building Floor Area Per Floor table on the cover sheet shows levels 6-12 being 19,674 sf. The floor plans show 19,643 sf. Update accordingly.

Sheet A6.0:
193) Provide setback dimensions along the entire building. 194) Label and dimension the property lines.
195) Is anything proposed underneath the helipad? It appears to be an empty building shell. 196) Specify if any mechanical equipment is proposed on the roof. If so, specify if it will be visible. 197) Confirm if the roof top activities are solely for the use of residents. 198) Specify the size of the covered clubhouse.
199) The Level 13 data shows 8,256 sf of “total community open space”, while the Community Open Space table at the bottom of the sheet says a total of 18,166 sf of community open space is provided at the roof terrace. Update accordingly. 200) Add the three trees along the sports court, per the landscape plans. 201) The size of the quiet open deck is no longer legible. 202) A new, Proposed Landscaping Calcs, table was added. Specify what “LA” refers to, as each

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
area is numbered “LA1, LA2,…” etc.
203) The total in the Proposed Landscape Area table (1,242 sf) does not match the total shown in the level 13 table (1,277 sf).
204) The total community recreation space (12,134 sf – in the Level 13 table) does not match what is shown in the Community Open Space table (18,166 sf at roof terrace level 13). 205) Please specify the height of the new metal screen fence along the outdoor play-court.

Sheet A7.0 and A7.1:
206) Label existing and proposed grade on all elevation and section drawings. 207) Give cardinal directions for the elevation titles. 208) Provide all four sides of the building.
209) Provide information on proposed exterior materials. The color scheme legend is not correct and hardly used. One of the two items used (E – wood composite cladding) is pointing to a glass railing.
210) Please provide a section running through the helipad portion of the building. Staff is unclear what is proposed within this building. Is the helipad technically a 14th story? 211) Provide finished floor heights along each story of the building. 212) Show neighboring structures in the “Front Elevation along Capri Drive.” 213) Label the vehicular and pedestrian entry points.
214) There is a (roughly) 10’ difference between the two elevations. All the elevation and section drawings need to show the maximum proposed height.
215) This sheet shows the total height at 168’, while the streetscape shows 167’. 216) Label the vertical clearance below the sunshade device (front elevation). 217) Items “F” through “I” are missing in the color scheme. 218) The neighboring structure on the left elevation is cut off and missing its height dimension. 219) Show the new trees along the Left Elevation and Rear Elevation. 220) Provide the address and height for all buildings shown. The office building on the front elevation is missing this.
221) Now that existing grade is shown, ensure that building height is measured to existing grade on all section and elevation drawings.
222) Provide material callout for the garage gate on the front elevation (“K”). • This remains outstanding. The “K” call-out does not have an arrow and is currently on top of the residence at 14274.
223) Label the metal screen around the play court, specify the height, and include a material callout. 224) On the left elevation, the cypress trees are cut-off, and notes to the old Brisbane box trees (removed from the landscape plans) are still shown.
225) Provide details on the new exterior molding/band proposed.

Sheet A8.0:
226) Label existing and proposed grade on all elevation and section drawings. 227) Label building heights (existing neighboring buildings and proposed building).

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
228) Specify proposed materials.
229) Label property lines.
230) Provide finished floor heights along each story of the building. 231) Provide the address and heights of all neighbors shown. 232) Label the vehicular and pedestrian entry points.
233) The “Winchester Avenue Streetview” appears to be mislabeled. The Winchester Streetview would arguable be just as wide as the Capri Drive street view. Instead, this looks like a street view from the southern corner of the building. Rename accordingly. 234) Label the location of each elevation and street view within the smaller Site Plan on this sheet.
235) What is shown on the Capri Drive Streetview? (see below). 236) Add the missing Winchester Blvd Streetscape.
237) Label maximum total height on each streetscape. Left elevation isn’t maximum height.

Left elevation shows 154’, but it isn’t pointing to the top of the screening. Additionally, the sections show this area as 155’.
238) See comment above regarding different max heights shown between streetscapes and elevations.
239) As noted in the completeness section above, there are three missing views from the streetscape, as well as missing buildings from the streetscapes that were provided. 240) Specify the heights of the residences in the new Rear Elevation.

Sheet A9.0:
241) Provide a site plan showing where each view is taken from. 242) Label exterior materials.
243) Include neighboring buildings where applicable.
244) “View 1 Along Capri Drive” is not “facing west.” Revise accordingly. 245) Either show tree sizes based off size at planting, or note how long they will take to get this tall.

Sheets A10.0 and A10.1:
246) Include a north arrow in the Kep Map and label the streets. 247) Label existing and proposed grade on all elevation and section drawings. 248) Specify the finished floor heights.
249) Show neighboring buildings (noting addresses and height). 250) The section shows 155’, the elevations show 154’, and one of the elevations shows 163’-4”.

The maximum proposed height needs to be consistent throughout all the drawings. 251) Specify what “T.O. P.W.” means. This is a height measurement shown just below the rooftop.
252) There is a “Capri Dr” label to the left of the section view, which should not be there. 253) What does this “x” represent? (see below).
254) Section B-B shows the top of rooftop at 155’, while the elevations show 154’. 255) Now that existing grade is shown, ensure that building height is measured to existing grade

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
on all section and elevation drawings.
256) The address added on A10.1 is incorrect. There is no “579” across Capri Drive.

Sheet A11.0- A11.3:
257) Specify the size (square feet) of each unit’s balcony. 258) Ensure that the unit size shown does not include the balcony. 259) Provide width and depth dimensions of all the balconies (Unit B is missing the width). 260) Ensure that the full extent of the balcony is shown (missing on A11.2 and A11.3). 261) The Unit Data table contains a “total” column that is unclear. Specify what “total” this is showing. If it is total floor area, the math is wrong. This table is on several sheets. 262) There are two different “Unit H” floor plans, but only one “H” column in the table. 263) There is a “I12” column in the table that doesn’t match any of the floor plan titles. 264) Units F, G, H, I, H (there are two “H” floor plans) are missing the second depth dimension along the balcony.
265) Sheet A11.0 was included twice in the plan set.
266) The Total Private Open Space shown in the table on these sheets is 21,003 sf, while the cover sheet shows 17,656.
267) The Key Map on Sheet A11.2 is not displaying correctly. 268) The summary table on Sheet A11.3 is cut-off. The “total” column should say “total private open space” to match the other tables.

Sheet A12.0
269) The shadow study is incomplete, and the shadow is cut-off. Zoom out on the December views to show the full extent of the shadows.
270) Include addresses and number of stories of each neighbor shown. 271) The March 21st (3pm) shadow study does not show the full extent of the shadow.

Sheet A13.0:
272) The plans need to be updated to clearly show where each of these materials are used. 273) Add information on the vehicular and pedestrian gates.

New Sheet A16.0:
274) For Diagram #2, staff is unclear where the “stepbacks” are taken from. For example, when the wall plane says “2’ stepback”, what is it stepping back from? 275) For the Level 13 diagram on A16.1, what is the 5’-11” dashed line represent? Sheet PL-1:
276) Include a planting plan with a proposed tree table (see application packet for details). 277) Is any fencing proposed? The O.S. Checklist calls for at least 5 trees along the rear property line and a masonry wall.
• This remains outstanding. Please clearly call out fencing proposed on the northern property line.

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
278) Specify the percentage of the site that is landscaped. 279) Specify the percentage of the community open space that has landscaping. 280) Specify the percent of the front setback area that is landscaped. Note that the landscape area highlighted extends into the public right-of-way. Only the on-site landscaping counts. 281) Ensure that the total landscape area (4,645 sf) does not include the landscaping in the public right of way. A diagram showing the overall landscape area would be helpful. 282) The electric transformer must be screened from view. Provide details on how this will be accomplished.
• This remains outstanding. Specify (or estimate) the height of the transformer. 283) Consider adding fencing along the cypress screen wall at the north of the building. Currently it dead ends and would present a possible safety issue. 284) The Italian Cypress is missing from the tree list on this sheet. 285) The palm trees were removed, but they are still shown on this sheet. 286) Fix the call-out line for the electrical transformer now that it has moved.

Sheet PL-2:
287) Specify the size of trees at maturity (submittal requirement). 288) Note that in-lieu fees will be required as the number of replacement trees does not meet Town Code.

Sheet PL-3:
289) Staff is having difficulty telling the difference between the (new) Trumpet Vine and the Toyon plants. Revise accordingly.

New Sheet E0.10:
290) Lighting is needed every 30’ per the Town’s Objective Design Standards (A.7.1). The lighting plan needs to note distances between exterior lights.
291) Add information to confirm lights will comply with the 30-degree shielding rule per Objective Design Standard A.7.2.

New Sheet E0.16:
292) Lighting is needed every 30’ per the Town’s Objective Design Standards (A.7.1). The lighting plan needs to note distances between exterior lights.
293) The step lights along the “quick deck” would not meet the height requirements of A.7.1. 294) Specify the height of wall mount lights and SW3 within the sports court. 295) Add information to confirm lights will comply with the 30-degree shielding rule per Objective Design Standard A.7.2.

Sheet E0.50:
296) Ensure there is an image for each of the callouts in the luminaire schedule. S1, SW1, D1, and SW3 are missing.
297) Specify mounting height for each. Only a few are shown. See related comment on ODS

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
Checklist.

General Comments:
1) Please modify plans per the above comments and resubmit to Planning via the Town’s Online Permitting Service with a compliance memorandum and any other supporting documents. Please also submit 2, full-size printed sets to Town Hall. 2) This Architecture and Site application is required to follow the Town’s Height Pole and Netting Policy. Height poles/renderings and project identification signs will be required prior to the public notice of any pending approval.
3) Pursuant to the adopted fee schedule, in the event additional processing services by the Town are required due to changes, modifications, additions, errors, omissions, or discrepancies caused by the applicant of his/her agents or representatives, the applicant shall pay an additional fee as determined by the Director of Community Development to cover the actual cost.
4) Pursuant to the adopted fee schedule, if the requested information from any of the Tech Review Staff is not submitted within 180 days of this meeting, the applicant will be required to pay a fee of 10% of the current application fee at the time the requested information is submitted. Any resubmittal after one year from September 17, 2025 will be processed as a new application, subject to new fees. 5) Pursuant to the adopted fee schedule, if after three meetings, any additional review is required by the Technical Review Committee and/or DRC, there will be an additional fee based on time and material cost.
6) The project is subject to WELO - New construction projects with an aggregate landscape area equal to or greater than five hundred 500 square feet or rehabilitated landscape projects with an aggregate landscape area of 2,500 square feet are subject to the State’s Model Water Efficiency Landscape Ordinance (WELO). A complete WELO Landscape Documentation Package is required prior to issuance of building and/or grading permits. A completed WELO Certificate of Completion is required prior to final inspection/certificate of occupancy. Review by the Town’s Consulting Landscape Architect for WELO requires a payment of a $5,500 deposit.

The application is complete but contains inconsistencies as identified above. Please resubmit and provide a compliance memorandum showing how all the deficiencies, corrections, and general comments have been addressed. When resubmitting, please include two printed, full-sized, 24” by 36” plan sets.

ITEM NO. 18.

Community Development Department • Planning Division • 110 E. Main Street 408.354.6872 • www.losgatosca.gov • www.facebook.com/losgatosca

TOWN OF LOS GATOS

FIFTH STAFF TECHNICAL

REVIEW COMMENTS
Ryan Safty
Associate Planner
[email protected]
(408) 354-6802
N:\DEV\PLANNING PROJECT FILES\Capri Drive\14288\S-24-044 - SB 330 Formal App\Staff Comment Letters\R5 - Complete\PLN - 14288 Capri Drive - Complete Letter 9-17-25.docx

ITEM NO. 18.

Highlighted fields represents missing, incomplete,
or inaccurate responses as identified by staff

YES NO N/A
X
A.1.1
DGO.1 / Note 1, A2.0
Project complies.

X
A.1.2
A2.0, PL-1, PL-2
Project complies.

A3.0, DG0.1
X A.2.1 DGO.1 / Keynote 1 Project complies.

X A.2.2 DGO.1 / Note 2
Project does not comply. 119 spaces required, 12 proposed.

Our approach is to supply the amount of guest stalls the VTA recommends which is substantially less than the Town. This is allowed by Builder's Remedy.

Thank you for providing justification. As noted in the comment letter, the application materials need to specify what VTA's recommended bike parking count is. The plans show that VTA recommends 1 GUEST bike space for every 20 units, but does not specify their recommendation for tenants. Therefore, this argument is incomplete as we don't specify what VTA's recommendation is for the project.

X A.2.3 DGO.1 / Note 3 Project complies.

X A.2.4 no sheet provided
N/A. 12 spaces proposed.

DGO.2 / Note 3
X A.3.1 DGO.2 / Note 4
Project does not comply. Long-term bike spaces are on garage levels 1-4, while the standard says they shall be located on the ground floor.

We have added a bike room on the ground level and have additional secured bike rooms on the upper levels.

X A.3.2 DGO.2 / Note 1
Project complies.

A.3.3
X no sheet provided N/A. Bike lockers are not proposed. X no sheet provided N/A. Bike lockers are not proposed. X no sheet provided N/A. Bike lockers are not proposed.

A.3.4
X DGO.1 / Keynote 7 Project complies. X
A4.3 (Update the page
reference as Sheet A4.3
now shows turningradius)
Project complies.

X
A4.3 (Update the page
reference as Sheet A4.3
now shows turningradius)
Project complies.

X
A4.3 (Update the page
reference as Sheet A4.3
now shows turningradius)
Project complies.

STAFF RESPONSE (UPDATED BASED ON APPLICANT RESPONSE
A.1. Pedestrian Access 7/18/25 RESUBMITTAL)
A. SITE STANDARDS
Each short-term bicycle parking space shall be a minimum of seven feet in length and two feet in width.If more than 20-short term bicycle spaces are provided, at least 50 percent of the spaces shall be covered by a permanent solid-roofed weather protection structure.

Long-term bicycle parking facilities (Class I bicycle parking facility) consists of bicycle lockers or bicycle rooms with key access for use by residents.

A.2. Short-Term Bicycle Parking (Class II)A.3. Long-Term Bicycle Parking (Class I) Long-term bicycles parking facilities shall be located on the ground floor and shall not be located between the building and the street.Multi-family residential and residential mixed-use buildings shall provide one longterm bicycle parking space per dwelling unit. Developments such as townhomes that include individual garages for each unit shall not be required to provide long-term bicycle parking.Bicycle locker minimum requirements:a. Dimensions of 42 inches wide, 75 inches deep, and 54 inches high.All on-site buildings, entries, facilities, amenities, and vehicular and bicycle parking areas shall be internally connected with a minimum four-foot-wide pedestrian pathway or pathway network that may include use of the public sidewalk. The pedestrian pathway network shall connect to the public sidewalk along each street.Pedestrian pathways within internal parking areas shall be separated from vehicular circulation by a physical barrier, such as a grade separation or a raised planting strip, of at least six inches in height and at least six feet in width. A pedestrian pathway is exempt from this standard where it crosses a parking vehicular drive aisle.

Short-term bicycle parking (Class II bicycle parking facility) consists of racks that support the bicycle frame at two points and allow for the bicycle frame and one wheel to be locked to the rack with a U-lock.

Short-term bicycle parking space shall be located within 50 feet of the primary pedestrian building entrance.Short-term bicycle parking shall be provided at a rate of one space per dwelling unit and one space per 2,000 square feet of non-residential floor area.b. Must withstand a load of 200 pounds per square foot.c. Opened door must withstand 500-pound vertical load.Bicycle rooms with key access minimum requirements:a. Bicycle rooms shall have a minimum ceiling height of seven feet.b. Bicycle rooms shall contain racks that support the bicycle frame at two points and allow for the bicycle frame and one wheel to be locked to the rack with a U-lock. c. Long-term bicycle parking spaces shall be served by an aisle with a minimum width of six feet.d. Maneuverability space of at least two feet shall be provided between the aisle and long-term bicycle parking spaces.

STAFF RECOMMENDATION TO INCREASE JUSTIFICATION AND NEW STAFF

COMMENTS BASED ON PLAN UPDATES
APPLICANT RESPONSIBILITY Applicants are responsible for accurately responding to each objective design standard listed below by indicating whether each standard has been met or does not apply. Applicants shall indicate the sheet(s) within the project plans that show compliance with each objective design standard.

OBJECTIVE DESIGN STANDARDS CHECKLIST - 7/18/25 UPDATES

SHEETS (UPDATED
7/18/25)
Objective Design Standard

ITEM NO. 18.

X
A4.3 (Update the page
reference as Sheet A4.3
now shows turningradius)
Project does not comply. 2' width requirement is not met. Two-tier system does not meet height requirement.

Provide justification. Only justification provided for long-term bikes is regarding the number of spaces required (A.3.2). Also, update the page reference as A4.3 now shows turning-radius.

X A.4.1 no sheet provided
N/A. Parking lot is not proposed.

X A.5.1 no sheet provided N/A. Parking lot is not proposed. X A.5.2 no sheet provided N/A. Parking lot is not proposed.

X A.6.1 DGO.1 / Keynote 2
Project complies.

X A.6.2 no sheet provided
Project does not comply. Parking structure occupies more than 50% of street facing façade.

Due to the irregular shape of the parcel and the fact it is triangular in shape and bounded by street on two sides, the parking has to be configured in a garage structure that occupies the majority of the site. Builder's Remedy allows us to not conform to the guidelines.

X A.6.3 DGO.1 / Keynote 3 Project complies.

X A.7.1 E0.10, E0.16
Project does not comply. Mounting height details
for SW3 are shown at 13' when 12' is max.

Provide justification.

X A.7.2 E0.10, General Note 5
Project complies.

X A.7.3 DGO.1 / Keynote 4, PL- 3
Additional details required. Plans do not specify height of utility item being screened. Additionally, justification provided in ODS checklist is not accurate. The plants around the new transformer would have a maturity height of 2', 4', and 10' (not 1').

Plants around the utility cabinet will be 1 foot height upon maturity. The cabinets will be painted by art. See PL-3 sheet for planting heights as a mature size.

Thank you for providing justification. However, the justification provided does not line up with what the plans show. The justification states that the plants around the utility cabinet will be 1 foot tall at maturity, while PL-3 shows these plants ranging in height from 2' to 10' in height.

X A.7.4 DGO.4 / Note 1 Project complies.

X A.8.1 A2.0
Additional details required. Plans do not specify amount of landscaping along front setback. Sheet A2.0 shows total landscape area. The plans need to specify the percent of the front setback that is landscaped.

Landscaping and Screening: Again, this is a Builder's Remedy project and we do not have to conform to this requirement and we can request waivers to this requirement.

Provide required details in plans. Staff does not have enough information to determine if this is complied with or not.

X A.8.2 no sheet provided
Project does not comply. 10-wide buffer is not proposed.

Landscaping and Screening: Again, this is a Builder's Remedy project and we do not have to conform to this requirement and we can request waivers to this requirement.

X A.8.3 no sheet provided
N/A. Parking lot is not proposed.

A.6. Parking Structure AccessA.4. Vehicular Access
A parking structure shall not occupy more than 50 percent of the building width of any street-facing façade, and it shall be recessed a minimum of five feet from the street-facing façade of the building.For projects with five or more residential units and that have a vehicle access gate to the parking structure, a pedestrian gate shall also be provided.Pedestrian-oriented lighting shall be provided along all pedestrian paths in community recreation spaces. Exterior lighting fixtures shall be a minimum of three feet and a maximum of 12 feet in height. Light fixtures shall be placed along the pedestrian path at a spacing of no more than 30 linear feet.Exterior lighting shall be fully shielded and restrain light to a minimum 30 degrees below the horizontal plane of the light source. Lighting shall be arranged so that the light will not shine directly on lands of adjacent residential zoned properties. Uplighting is prohibited.

A.5. Parking Location and Design
e. Each horizontal long-term bicycle parking space shall be a minimum of seven feet in length, two feet in width, four-and one-half feet in height. Each vertical longterm bicycle parking space shall be a minimum of three-and one-half feet in length, two feet in width, and seven feet in height.Off-street parking lots shall have vehicular circulation using an internal vehicular network that precludes the use of a public street for aisle-to-aisle internal circulation.Surface parking lots and carports shall not be located between the primary building frontage and the street.Uncovered parking rows with at least 15 consecutive parking spaces shall include a landscape area of six feet minimum width at intervals of no more than 10 consecutive parking stalls. One tree shall be provided in each landscape area.Any vehicular entry gate to a parking structure shall be located to allow a minimum of 18 feet between the gate and the back of the sidewalk to minimize conflicts between sidewalks and vehicle queuing.

A.7. UtilitiesA.9. Fencing
Rooftop mechanical equipment shall be screened from view from the street. Solar At least 50 percent of the front setback area shall be landscaped. A minimum 10-foot-wide landscape buffer shall be provided along the full length of the shared property line between multi-family or Residential Mixed-Use development and abutting residential properties. The buffer shall include the following:a. A solid masonry wall with a six-foot height, except within a street-facing setback where walls are not permitted; andb. Trees planted at a rate of at least one tree per 30 linear feet along the shared property line. Tree species shall be selected from the Town of Los Gatos Master Street Tree List and shall be a minimum 15-gallon size.Surface parking lots shall be screened from view of the street with landscaping or a wall with a minimum three-foot height to screen the parking lot when not already screened by a primary building. When located in a street-facing setback, screening may not exceed a height of three feet.

A.8. Landscaping and Screening
Street-level views of ground level utility cabinets, mechanical equipment, trash, and service areas shall be screened from sight with landscape planting, fencing, or a wall, as allowed by the Town Code. The screening shall be at least the same height as the item being screened and screening that is not landscape material shall be constructed with one or more of the materials used on the primary building.

ITEM NO. 18.

X A.9.1 no sheet provided
Project does not comply and additional details required. Provide a sheet reference. This set of plans has less information on proposed fencing than the last round, but fencing is now shown adjacent to the cul-de-sac, which does not comply with this requirement. Provide justification, details in plans, and a sheet reference.

Provide justification.

X A.9.2 no sheet provided Project complies.

X A.9.2 no sheet provided N/A. Perimeter barrier gates are not proposed.

X A.9.4 DGO.1 / Keynote 3, A7.0 Project complies.

X A.10.1 no sheet provided
N/A. Retaining walls are not proposed.

X A.10.2 no sheet provided
N/A. Retaining walls are not proposed.

A.11.1 no sheet provided
X PL-1, DGO.3 / Note 1
Project does not comply. PL-1 shows 16%. Landscaped spaces: we do not comply with the 20% but have modified our plans to be at 16% landscape areas of the site. Again, the configuration of the site warrants the reduction in landscape area in addition to the loss of land at the proposed cul-de-sac.

X DG0.3 / Note 1, A10.0, A10.1
Project does not comply. The juliet balconies do not comply.

Juliet balconies: Our juliet balconies are 6'-5" wide but only 13 square feet. The remaining square feet required is in the community recreation space. We still comply with the total open area required.

X no sheet provided N/A. Ground units are not proposed.

X DGO.3 / Note 2
Project does not comply. The juliet balconies do not comply.

Juliet balconies: Our juliet balconies are 6'-5" wide but only 13 square feet. The remaining square feet required is in the community recreation space. We still comply with the total open area required.

X A6.0
Project appears to comply, but additional details required in plans. It appears that more than 60% of the area is open to the sky (8,256 sf / 12,134 sf = 68%). However, two vastly different numbers for proposed community open space are provided (12,134 sf vs 18,166 sf). It appears that at least 15% of this space is shaded, but no calculation was provided, and no details showing how many square feet is shaded.

Provide additional details in plans to show compliance (percentages).

X no sheet provided
N/A. Not a mixed-use project.

X A6.0, DGO.3 / Note 3 Project complies.

X no sheet provided N/A. More than 4 residential units proposed.

X PL-1
Project complies.

A.10. Retaining WallsA.11. Landscaped, Private, and Community Recreation SpacesA.12. Building Placement Chain link fencing is prohibited.Perimeter barrier gates for vehicles and pedestrian entry gates shall have a maximum height of six feet.Solid vehicular and pedestrian entry gates are prohibited. Entry gates shall be a minimum 50 percent open view.Retaining walls shall not exceed five feet in height. Where an additional retained portion is necessary, multiple-terraced walls shall be used. Terraced walls shall set back at least three feet from the lower segment.Fences, walls, and gates within required setbacks along all street frontages are prohibited unless used to screen on-site parking spaces from view from the street.c. Community recreation space: The minimum dimensions are 10 feet by six feet. A minimum of 60 percent of the community recreation space shall be open to the sky and free of permanent solid-roofed weather protection structures. Community recreation space shall provide shading for a minimum 15 percent of the community recreation space by either trees or structures, such as awnings, canopies, umbrellas, or a trellis. Tree shading shall be calculated by using the diameter of the tree crown at 15 years maturity. Shading from other built structures shall be calculated by using the surface area of the overhead feature.i. Community recreation space shall be provided in Residential Mixed-Use developments at a minimum of 100 square feet per residential unit plus a minimum of two percent of the non-residential square footage.ii. Community recreation space shall be provided in multi-family residential development projects at a minimum of 100 square feet per residential unit.iii. A project with four or less residential units is exempt from community recreation space requirements.iv. Landscaped roof space can satisfy both required landscaping requirements and community recreation space requirements. Landscaped roof space may not be used to satisfy more than 50 percent of the required landscaping for the site.Retaining walls shall not run in a straight continuous direction for more than 50 feet without including the following:a. A break, offset, or landscape pocket in the wall plane of at least three feet in length and two feet in depth; andb. Landscaping at a minimum height of three feet at the time of installation along a minimum of 60 percent of the total length of the retaining wall.The landscaped, private, and community recreation spaces listed below are required for all qualifying projects. Community recreation spaces and private recreation spaces are calculated independent of each other. Landscaped areas within community recreation spaces can contribute to required minimums for both landscaped area and community recreation space.a. Landscaped space: A minimum of 20 percent of the site area shall be landscaped.b. Private recreation space: The minimum horizontal dimension is six feet in any direction and a minimum area of 60 square feet. The minimum vertical clearance required is eight feet. Private recreation space shall be directly accessible from the residential unit. Landscaped sections of private recreation space shall not count towards required landscaping requirements.i. Each ground floor dwelling unit shall have a minimum of 120 square feet of usable private recreation space.ii. Each dwelling unit above the ground floor shall have a minimum of 60 square feet of usable private recreation space. Where multiple balconies are provided for a single unit, the 60-square-foot minimum can be an aggregate of all balconies, provide each balcony meets the requirements for minimum horizontal dimensions.

ITEM NO. 18.

X A.12.1 A2.0
Project complies.

X A.12.2 no sheet provided
N/A. Not a mixed-use project.

X no sheet provided N/A. Not a mixed-use project. X no sheet provided N/A. Not a mixed-use project. X no sheet provided N/A. Not a mixed-use project. X no sheet provided N/A. Not a mixed-use project.

YES NO N/A
X B.1.1 no sheet provided
Project does not comply. 3 or more solutions not used.

We are not in compliance, but we have placed multiple deck areas along the façade that are recessed into the building greater than the minimum two feet to create articulation in the massing of the building. The 5' second floor setback is not possible with the configuration and size of the parcel.

X A16.0 Diagram #2 Project does not comply. The second floor does not step-back 5' from the ground floor. X A16.0, A16.1 Project does not comply. We are not in compliance, but we have placed multiple deck areas along the façade that are recessed into the building greater than the minimum two feet to create articulation in the massing of the building. The 5' second floor setback is not possible with the configuration and size of the parcel.

X A16.0
Project complies.

X no sheet provided
Project does not comply. No exterior arcade proposed.

This particular project does not lend itself to an arcade to be included in the design especially with the size and shape of the lot.

X no sheet provided
Additional details required. This is marked as "yes" now, but not plan sheet reference is provided. It appears that the area near the main entrance (south-side of the building, facing Capri) would be close to meeting this, but not all of this is "open area" as bike parking is proposed.

Provide a sheet reference that shows compliance with this standard and update plans to include these details.

X no sheet provided
Project does not comply. Vertical elements are not proposed.

We do not comply because vertical columns do not blend with the architecture we have proposed. This is totally subjective and not appropriate on this project.

X B.1.2 A16.1
Project does not comply. The upper floors do not
step back 5' from the ground floor.

Provide justification. The updated ODS checklist says "see letter of justification", but no justification for this item is provided in your Letter of Justification.

X B.2.1 A16.0, A16.1
Project complies.

X B.2.2 A7.0, A7.1
Project complies.

X B.2.3 PL-1
Project complies.

STAFF RECOMMENDATION TO INCREASE JUSTIFICATION AND NEW STAFF

COMMENTS BASED ON PLAN UPDATES
e. Ground floor open area abutting street-facing façade with a minimum area of 60 square feet; orf. Vertical elements, such as pilasters or columns, that protrude a minimum of one foot from the façade and extend the full height of the building base or ground floor, whichever is greater.A Residential Mixed-Use project with a ground-floor non-residential use shall provide site amenities on a minimum of 15 percent of the ground plane between the building and the front or street-side property line. The site amenities shall be comprised of any of the following elements:
a. Landscape materials or raised planters;
b. Walls designed to accommodate pedestrian seating, no higher than 36 inches; c. Site furnishings, including fountains, sculptures, and other public art; or d. Tables and chairs associated with the ground floor use.

Multiple-story building façades that face a street shall incorporate breaks in the building mass by implementing a minimum of three of the following solutions along the combined façade area of all primary buildings facing the street: a. A minimum of 40 percent of the upper floor façade length shall step back from the plane of the ground-floor façade by at least five feet; b. Changes in the façade plane with a minimum change in depth of two feet for a minimum length along the façade of two feet at intervals of no more than 30 feet;c. Recessed façade plane to accommodate a building entry with a minimum ground plane area of 24 square feet. Where an awning or entry covering is provided, it can extend beyond the wall plane;d. An exterior arcade that provides a sheltered walkway within the building footprint with a minimum depth of eight feet. For a façade 50 feet or greater, the arcade must be a minimum length of 65 percent of the full building façade; for a facade less than 50 feet, the arcade must be a minimum of 80 percent of the full Upper floors above two stories shall be set back by a minimum of five feet from the ground-floor façade.The ground-floor façade of a parking structure facing a street or pedestrian walkway shall be fenestrated on a minimum of 40 percent of the façade.Façade openings on upper levels of a parking structure shall be screened at a minimum 10 percent and up to 30 percent of the opening to prevent full transparency into the structure.Parking structures facing a street and greater than 40 feet in length shall include landscaping between the building façade and the street, or façade articulation of at least 25 percent of the façade length. The façade articulation shall be implemented by one of the following solutions:

B.2. Parking Structure Design
Objective Design Standard

SHEETS (UPDATED
7/18/25)

STAFF RESPONSE (UPDATED BASED ON
7/18/25 RESUBMITTAL)

APPLICANT RESPONSE
To ensure buildings provide a continuous frontage along sidewalks, development in commercial zones shall place at least 75 percent of any ground floor street-facing façade on or within five feet of the setback line designated in the Town Code.

B.1. Massing and Scale
B. BUILDING DESIGN

ITEM NO. 18.

X A7.0, A7.1
N/A. Landscaping is used instead of façade articulation.

X A7.0, A7.1
N/A. Landscaping is used instead of façade articulation.

X B.3.1
Project does not comply. No solutions are proposed.

The shape and size of the roof has been carefully designed to support solar panels and because of the height of the project, this design guideline for roofs is not appropriate.

X no sheet provided Project does not comply. Gables are not proposed. X A16.1 Project does not comply.

X A7.0, A7.1, A10.0
Project does not comply.

X no sheet provided Project does not comply. X A10.0, A10.1 Project does not comply.

X B.3.2 no sheet provided N/A. Skylights are not proposed. X B.3.3 no sheet provided N/A. Dormers are not proposed.

X B.3.4 no sheet provided N/A. Carports are not proposed.

X B.4.1 A16.0, A16.1
Project complies. Solutions (d) and (e) are met.

X A16.0, A16.1
Project does not comply.

X A11.0 - A11.4
Project does not comply.

X no sheet provided
Project does not comply.

X DG0.3 / Note 5, A7.0, A7.1 Project complies.X DG0.3 / Note 6 Project complies.

X B.4.2 DG0.3 / Note 7 Project complies.

X B.4.3 A7.0, A7.1, A9.0, A10.0, A.10.1 Project does not comply. Not enough points achieved. See below. Provide justification.X o Arcade or gallery along the ground floor; 8 points no sheet provided Project does not comply. Arcade or gallery is not proposed.

X o Awnings or canopies on all ground floor windows of commercial space; 6 points no sheet provided N/A. Commercial space is not proposed. You marked "yes"; however, there is no commercial space proposed so this cannot be met.

X o Building cornice; 5 points no sheet provided
Additional details required. This is now marked as "yes", but not plan sheet reference is provided. Staff sees a new "molding/band" on the elevations. Please confirm this is what you are referring to.

X o Façade sconce lighting at a minimum of one light fixture per 15 linear feet. 3 points E0.10 Project does not comply. Sheet E0.10 shows that light spacing does not meet this requirement.

At intervals of no more than 40 feet along the building façade, horizontal eaves shall be broken using at least one of the following strategies:
a. Gables;
b. Building projection with a depth of a minimum of two feet; c. Change in façade or roof height of a minimum of two feet; d. Change in roof pitch or form; or
e. Inclusion of dormers, parapets, and/or varying cornices. a. An offset of the façade plane with a depth of at least 18 inches for a minimum of eight feet in horizontal length; orb. A different building material covering the entire façade articulation.

B.3. Roof Design
c. Variation in façade articulation, using shade and weather protection components, projecting a minimum of three feet for a minimum of 20 percent length from the street-facing façade;d. The use of at least two different façade materials, each covering a minimum of 20 percent of the street-facing façade, ore. The upper floor shall implement a façade height that is a minimum of two feet greater than the façade height of the floor immediately below. The greater façade height shall be made evident by taller windows or arrangement of combined windows.All façade materials, such as siding, window types, and architectural details, used on the street-facing façade shall be used on all other building façades.Variation in the street-facing façade planes shall be provided for buildings greater than one story by incorporating any combination of the following architectural solutions to achieve a minimum of 16 points:

Architectural features, such as:Skylights shall have a flat profile rather than domed.The total width of a single dormer or multiple dormers shall not exceed 50 percent of the total roof length at the street-facing façade. The dormer width shall be measured at dormer roof fascia, or widest part of the dormer.Carport roof materials shall be the same as the primary building.Buildings greater than two stories shall be designed to differentiate the base, middle, and top of the building on any street-facing façade. Each of these elements shall be distinguished from one another using at least two of the following solutions:
a. Variation in building mass for a minimum of 60 percent of the length of the street-facing façade through changes in the façade plane that protrude or recess with a minimum dimension of two feet;b. Balconies or habitable projections with a minimum depth of two feet for a minimum of 20 percent length of the street-facing façade; B.4. Façade Design and Articulation

ITEM NO. 18.

X
 Bay or box windows projecting a minimum of 18 inches from the façade plane and comprising a minimum of 20 percent of the fenestration on the upper floors of the facade; 6 points no sheet provided
Project does not comply. Bay windows are not proposed.

X
 Balconies or Juliet balconies provided on a minimum of 40 percent of the fenestration on the upper floors of the facade; 5 points A10.0, A10.1 Additional details required. This is marked as "yes". The plans do not clearly show/state how this is complied with. Provide this diagram and/or calculation in the plans. Additionally, fix the sheet reference as Sheets A10.0 and A10.1 show building sections.

X
 Landscaped trellises or lattices extending across a minimum of 65 percent of any level of the facade; 5 points no sheet provided Project does not comply. Landscaped trellices or lattices are not proposed.

X  Materials and color changes; 3 points A7.0, A7.1 Project complies.

X
 Eaves that overhang a minimum of two feet from the facade with supporting brackets; 3 points no sheet provided
Additional details required. This is now marked as "yes". The plans do not clearly show/state how this is complied with. Provide this diagram and/or calculation in the plans. Additionally, provide a sheet reference that shows eaves with a 2' overhang on both street-facing facades.

X
 Window boxes or plant shelves under a minimum of 60
percent of the fenestration on the upper floors of the facade; or 3 points no sheet provided Project does not comply. Window boxes are not proposed.

X  Decorative elements such as molding, brackets, or corbels 3 points no sheet provided Additional details required. This is now marked as "yes". The plans do not clearly show/state how this is complied with. Provide this diagram in the plans. Additionally, provide a sheet reference that shows the decorative elements "at all the railings", as you note in the ODS checklist.

TOTAL 8 points (16 needed) Project does not comply. Not enough points achieved. Provide justification.

X B.4.4 no sheet provided N/A. Garage doors are not proposed.

X B.4.5 DGO.1 / Note 5 Project complies.X B.4.6 no sheet provided Project complies.

X A3.0, A4.0
Project complies.

X A5.0, A2.0, A3.0, A4.0
Project complies.

X A5.1, A3.0, A4.0
Project complies.

X no sheet provided N/A. Commercial space is not proposed.

X B.4.7 A10.0, A10.1
Project complies.

X no sheet provided N/A. Individual entries on ground floor not proposed.

X A3.0, A2.0
Project complies.

X A3.0, A2.0 Project complies.X B.4.8 A7.0 Project complies.X B.4.9 A7.0, A7.1 Project complies.X A7.0 Project complies.

X no sheet provided N/A. Individual storefront bays are not proposed.

X A9.0
Project complies.

Awnings shall be subject to the following requirements:a. A minimum vertical clearance of eight feet measured from the pedestrian pathway;b. Shall not extend beyond individual storefront bays; and c. Shall not be patterned or striped.
b. For ground-floor commercial uses, façades facing a street shall include Pedestrian entries to buildings shall meet minimum dimensions to ensure adequate access based on use and development intensity. Building entries inclusive of the doorway and the facade plane shall meet the following minimum dimensions: a. Individual residential entries: five feet in width b. Single entry to multiple residential unit building, including Residential MixedUse buildings: eight feet in width c. Storefront entry: six feet in width
Mirrored windows are prohibited.Garage doors shall be recessed a minimum of 12 inches from the façade plane and Changes in building materials shall occur at inside corners.A primary building entrance shall be provided facing a street or community recreation space. Additionally, all development shall meet the following requirements:a. Pedestrian entries to ground-floor and upper-floor non-residential uses shall meet at least one of the following standards:i. The entrance shall be recessed in the façade plane at least three feet in depth; orii. The entrance shall be covered by an awning, portico, or other architectural element projecting from the façade a minimum of three feet.

ITEM NO. 18.

X B.4.10 no sheet provided
Project does not comply. The proposed balconies along the northern elevation do not comply. Provide a sheet reference and justification. The response says that the balconies would face a commercially zoned parcel to the north. This is true, however, the standard says "or existing singlefamily use." The property to the north is zoned C-1 but is used as a single-family residence.

Provide justification.

X B.4.11 DG0.3 / Note 8
Project does not comply. The proposed balconies would face the existing adjacent residential use to the north.

Provide justification.

X B.4.12 no sheet provided
N/A. Residential mixed-use is not proposed.

X no sheet provided N/A. Residential mixed-use is not proposed. X no sheet provided N/A. Residential mixed-use is not proposed. X no sheet provided N/A. Residential mixed-use is not proposed.

X B.4.13 DG0.3 / Note 9, A9.0 Project complies.

Residential Mixed-Use buildings shall provide at least one of the following features along street-facing façades where the façade exceeds 50 feet in length:a. A minimum five-foot offset from the façade plane for a length of at least 10 feet;b. Multiple pilasters or columns, each with a minimum width of two feet; or c. Common open space, such as a plaza, outdoor dining area, or other spaces.

Continuous blank façades on any floor level shall not exceed 25 percent of the entire façade length along any street.For buildings abutting a single-family zoning district or existing single-family use, no part of a rooftop or upper floor terrace or deck shall be closer than five feet from the facade plane of the lower floor, to prevent views into adjacent residential uses.Balconies are allowed on facades facing the street and those facades facing existing non-residential uses on abutting parcels. Such balconies shall be without any projections beyond the building footprint.

ITEM NO. 18.

ATTACHMENT 5
DRAFT RESOLUTION 2025-____

RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS ADOPTING FINDINGS REQUIRED BY GOVERNMENT CODE § 65589.5(f)(6)(D)(iv)

IN RESPONSE TO NOTICE OF CHALLENGED CONDUCT
SUBMITTED TO THE TOWN ON OCTOBER 2, 2025
PROPERTY LOCATION: 14288 CAPRI DRIVE
APN: 406-30-016
ARCHITECTURE AND SITE APPLICATION: S-24-044
PROPERTY OWNER: LOS GATOS LLC
APPLICANT: SOCAL INDUSTRIAL EQUITIES
WHEREAS, the Government Code Section 65589.5(h)(6)(D) defines “disapprove the housing development project” to include any instance in which a local agency fails to cease a course of conduct undertaken for an improper purpose, including to harass or to cause unnecessary delay or needless increases in the cost of a proposed housing development project, that effectively disapproves the proposed housing development without taking final administrative action if certain conditions are met; and
WHEREAS, Government Code Section 65589.5(h)(6)(D)(i) provides that the applicant for a proposed housing development project must provide a local agency with written notice detailing the challenged conduct and why it constitutes disapproval; and WHEREAS, Government Code Section 65589.5(h)(6)(D)(iii) bars the local agency from making a determination on a Challenged Conduct Notice until at least 60 days after the project applicant provides the local agency with the written Challenged Conduct Notice; and WHEREAS, Government Code Section 65589.5(h)(6)(D)(iv) provides that within 90 days of receipt of the applicant’s written Challenged Conduct Notice, the local agency shall issue written statement that it will immediately cease the challenged conduct, or issue written findings that (1) articulate an objective basis for why the challenged course of conduct is necessary, and (2) provide clear instructions on what the applicant must submit or supplement so that the local agency can make a final determination regarding the next necessary approval or set the date and time of the next hearing; and WHEREAS, on August 23, 2024, SoCal Industrial Equities submitted Architecture and Site Application S-24-044 for 119 dwelling units; and
WHEREAS, Architecture and Site Application S-24-044 was deemed complete on September 17, 2025; and
WHEREAS, on October 2, 2025, SoCal Industrial Equities submitted a Challenged Conduct Notice pursuant to Government Code Section 65589.5(h)(6)(D)(i), as described in Exhibit A and attached as Attachment A; and
Draft Resolution to be
modified by Town
Council deliberations
and direction.

ITEM NO. 18.

WHEREAS, within five working days of receiving the Challenged Conduct Notice, the Town posted the notice on the Town’s website and filed the notice with the Santa Clara County Clerk. No person had made a written request for notice under Public Resources Code Section 21167(f); and WHEREAS, the Town considered all objections, comments, evidence and concerns about the project and the applicant’s written notice and did not make a determination until at least 60 days after receipt of the applicant’s written notice; and
WHEREAS, on December 16, 2025, the Los Gatos Town Council reviewed the Challenged Conduct Notice and proposed findings at a public meeting and considered all public testimony and all written materials provided to the Council; and
WHEREAS, based on substantial evidence and the totality of the record, the Town Council resolves as follows.

NOW, THEREFORE, BE IT RESOLVED, THAT THE TOWN COUNCIL HEREBY FINDS THAT BASED ON SUBSTANTIAL EVIDENCE IN THE RECORD:

1. The foregoing recitals are true and correct and are incorporated by reference into this action.

2. The Town Council adopts the findings, attached hereto as Exhibit “A,” including all attachments and linked documents, in response to the Challenged Conduct Notice provided by SoCal Industrial Equities on October 2, 2025.

PASSED AND ADOPTED at a meeting of the Town Council of the Town of Los Gatos, California, held on the 16th day of December, 2025, by the following vote:

TOWN COUNCIL MEMBERS:

AYES:

NAYS:

ABSENT:

ABSTAIN:

SIGNED:

MAYOR, LOS GATOS TOWN COUNCIL
DATE: _________________

ITEM NO. 18.

EXHIBIT “A”
December 16, 2025

VIA ELECTRONIC MAIL
Ben Eilenberg
SoCal Industrial Equities
[email protected]
[email protected]
RE: Findings in Response to Challenged Conduct Notice (Gov’t Code Section 65589.5(h)(6)(D) Regarding Vista Capri Housing Development Project This Exhibit provides the findings of the Town of Los Gatos (the “Town”) in response to the Challenged Conduct Notice (the “Notice”) submitted to the Town on October 2, 2025 by SoCal Industrial Equities (the “Applicant”) for a 119-unit housing development project (the “Project”) located at 14288 Capri Drive in the Town.

In response to the receipt of the Notice, and as required by the Government Code Section 65589.5(h)(6)(D)(ii)1
, the Town posted the Notice on the Town’s website on October 9, 2025 (https://www.losgatosca.gov/2371/C) and filed the Notice with the Santa Clara County Clerk on October 9, 2025 (See Attachment A). No person has made a request for notices under Public Resources Code Section 21167(f).

As required by Section 65589.5(h)(6)(D)(iv), this letter describes why the challenged course of conduct was necessary and provides clear instructions on what the Applicant must submit or supplement so that the Town can make a final determination regarding the next necessary approval or set the date and time of the next hearing.

Background and Project History
On March 5, 2024, the Applicant filed a preliminary application for the Project containing all the information required by Section 65941.1. On August 23, 2024, the Applicant filed Architecture and Site Application No. S-24-044 (the “Application”) for approval of demolition of an existing commercial building, construction of a multi-family residential development containing 119 units, and site work requiring a grading permit. The Town found the application to be complete on September 17, 2025, pursuant to Section 65943.

If the Town considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with any applicable "plan, program, policy, ordinance, standard, requirement, or other similar provision," Section 65589.5(j)(2) requires the Town to provide written documentation identifying the provision and an explanation of the reasons that the development is non-compliant within 30 days after the application is found to be complete under Section 65943. In accordance with this requirement of state law, the Town provided written documentation of the Project inconsistencies to the Applicant in a letter dated September 17, 2025 (the “Staff Technical 1 All further references are to the Government Code unless otherwise stated.

ITEM NO. 18.

Review Letter”), in the same letter in which the Town found the Project to be complete (See Attachment B).

On September 17, 2025, the Applicant’s legal counsel, Richard Jacobs, sent a letter to the Town detailing the Applicant’s position that the Project qualifies for the statutory exemption from the California Environmental Quality Act (“CEQA”) contained in Public Resources Code Section 20180.66 and requesting a response by September 26, 2025 (See Attachment A).

On September 18, 2025, Jacobs sent another letter to the Town, this time raising various objections to requests in the Staff Technical Review Letter (See Attachment A).

On October 2, 2025, the Applicant’s representative, Ben Eilenberg, sent an email to the Town regarding the September 17 and September 18 letters. Eilenberg’s email stated, in relevant part:
“Please consider this our request to move forward with the administrative process set forth in Government Code Section 65589.5(h)(6)(D).” Eilenberg’s email attached Jacobs’ September 17 and September 18 letters (See Attachment A). Based on the foregoing, the Town determined that the Applicant’s Challenged Conduct Notice – which includes Eilenberg’s email and both of Jacobs’ letters – was submitted on October 2, 2025.

Section 65589.5(h)(6)(D)(iii) does not allow the Town to make any determination about the Notices until at least 60 days after the Notice is filed, so that that the Town could not make any determination regarding the issues raised in the Notice before December 1, 2025. The Town must make a determination within 90 days after the Notice.

Actions Challenged
A course of conduct “effectively disapproves” a proposed housing development if the course of conduct was “undertaken for an improper purpose, such as to harass or to cause unnecessary delay or needless increases in the cost of the proposed housing development,” and that course of conduct “effectively disapproves the proposed housing development” [Section 65589.5(h)(6)(D)].

The Notice challenges several actions taken by the Town regarding the Project, as follows:

Issues Related to CEQA Compliance
• The Applicant’s contention that the Project is eligible for the exemption from CEQA provided by Public Resources Code Section 21080.66 (September 17, 2025 Letter). • The Town’s request for additional information to determine what environmental analysis should be completed for the Project and the Town’s note that future fees may be required to complete the required environmental analysis (Items 3 and 4 in September 18, 2025 Letter).

Other Issues Contained in September 18, 2025 Letter
• The Town’s requirement that the Project apply for a Conditional Use Permit and ask not to include commercial uses in the Project (Item 1).
• The Town’s requirement that the Applicant pay outstanding fees related to review by the Town’s Consulting Arborist and Consulting Architect (Items 5 and 6),

ITEM NO. 18.
• The Town’s recommendation that the Applicant reach out to all necessary outside agencies and neighboring properties to provide any required notification regarding the Project (Item 7).
• The Town’s determination that the Project Description/Letter of Justification and the Project floor plans do not demonstrate how the Project complies with the Town’s Below Market Price (BMP) program requirements (Items 8 and 10).

Challenges to Town’s Actions under CEQA
The September 17 letter states that the Project qualifies for the statutory exemption from CEQA in Public Resources Code Section 20180.66. Items 3 and 4 in the September 18 letter state that any attempts from the Town to require additional reports on environmental matters are improper because the Project is exempt from CEQA.

However, the Town’s actions “in furtherance of complying with [CEQA], including, but not limited to, imposing mitigation measures, shall not constitute project disapproval under this subparagraph” (i.e., pursuant to a Challenged Conduct Notice) [Section 65589.5(h)(6)(D)(vi)]. The requests included in Items 3 and 4 in the Staff Technical Review Letter (challenged in the September 18 letter), copied below, were in furtherance of complying with CEQA:
3) CEQA: Clarify whether the applicant team anticipates providing any technical studies related to environmental analysis (traffic, habitat, cultural, air quality, noise, soils, etc.) for peer review by the Town Environmental Consultants. If not provided, the studies determined to be required by the Environmental Consultant will be prepared by the Town Environmental Consultants at the cost of the applicant. • You previously indicated via email that your team will prepare an Arborist Report and Traffic Study. Please confirm. Additionally, an email was forwarded to your team on 9/13/24, requesting some additional information in the Phase I ESA and the Noise Report. Please provide a response.
• The response letter uploaded in July 2025 [a response from the applicant quoted by the Town] states that, “under the new laws passed, CEQA no longer applies to this project.” Please specify which CEQA exemption you believe applies to this project, and provide substantial evidence that the project meets each requirement of the exemption. Staff will then review to determine eligibility. 4) CEQA: Staff is coordinating with Town Environmental Consultants to determine what environmental analysis will be required for the project. Environmental analysis is required at cost to the applicant. Staff will require payment of a deposit at a future date. • The response letter uploaded in July 2025 states that, “under the new laws passed, CEQA no longer applies to this project.” See response to #[3] above.

The Applicant has challenged both of these items based on the Applicant’s contention that no further environmental review can be required because the Project is eligible for the statutory exemption from CEQA provided by Section 21080.66. Both items were requested by the Town in furtherance of

ITEM NO. 18.
complying with CEQA. As a result, the Town’s request for that information cannot constitute project disapproval pursuant to a Challenged Conduct Notice.

The September 17, 2025 letter asserts that the Project is eligible for the statutory exemption provided by Public Resources Code Section 20180.66. The Town was reviewing the letter but had not reached a conclusion when the Challenged Conduct Notice was filed on October 2, 2025. The Town’s review of the request was in furtherance of complying with CEQA by determining whether the Project was eligible for the proposed exemption. As a result, the Town’s actions cannot constitute project disapproval pursuant to a Challenged Conduct Notice. Note that because no response can be made to a Challenged Conduct Notice for 60 days, the Town’s response has been substantially delayed.

All of the issues raised regarding the Town’s actions in furtherance of complying with CEQA are not a proper subject for a Challenged Conduct Notice and will not be further discussed further.

The Housing Accountability Act establishes a specific procedure for an applicant to challenge a local agency if the applicant believes a project is eligible for a CEQA exemption (See Section 65589.5.1).

The Applicant has not invoked or followed this process.

Objective Basis for the Challenged Course of Conduct.

The findings below respond to the remaining items challenged in the Applicant’s letter of September 18, 2025. All of the challenged conduct relates to items contained in the Staff Technical Review Letter, dated September 17, 2025, regarding the Project’s consistency with Town standards and requirements. Agency conduct is not consistent with State law if it is taken for an improper purpose.

In responding to the Notice, the Town must first provide findings that articulate an objective basis for why the challenged course of conduct was necessary. In this case, the Town’s course of conduct was both required by and complies with state law, is consistent with the Town’s local objective requirements, and was not undertaken for an improper purpose.

A. The Town’s Challenged Course of Conduct Was Required by State Law.

Government Code Section 65589.5(j)(2)(A) requires the following actions by the Town:
“If the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, it shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity as follows:
“(i) Within 30 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains 150 or fewer housing units.”
After the Project application was found to be complete on September 17, 2025 under Section 65943, the Town was required to notify the Applicant within 30 days of any standard with which the Project was inconsistent. Town Staff reviewed each applicable “plan, program, policy, ordinance, standard, requirement, or other similar provision” adopted by the Town. On the same day that the Town found

ITEM NO. 18.
the application was complete, the Town sent the Applicant the Staff Technical Review Letter, which contained the required written documentation identifying the provisions with which the Project was inconsistent, including an explanation of the reasons it considered the housing development project to be inconsistent. The purpose of a consistency letter is to enable an applicant to correct any deficiencies so that a housing development project may be approved. An applicant may elect to achieve consistency by some combination of design modifications, requests for rezoning or other discretionary approvals, or specific requests for concessions and waivers of the various standards that were not met, as permitted under state density bonus law (See Sections 65915 et seq.).

The requirements of State law provide an objective basis why this course of conduct was necessary:
the Town was required to provide the Applicant with written documentation identifying those Town standards with which it considered the Project to be inconsistent.

B. The Town’s Determinations of Inconsistency are Supported by Local and State Law.

The Applicant challenges several of the conclusions in the Staff Technical Review Letter. These actions by the Town constitute a disapproval only if they were taken for an improper purpose, such as to harass or to cause unnecessary delay or needless cost increases [Section 65589.5(h)(6)(D)].

The sections below present the Town’s objective bases for the challenged course of conduct.

1. Conditional Use Permit Requirement.

Town Requirement. The project site is zoned C-1 (Neighborhood Commercial). The Town’s Zoning Code provides that “the activities listed in the table in section 29.20.185 are allowed [in the C-1 Zone] if a conditional use permit is issued” (Town Code § 29.60.215). Among the conditionally permitted uses for the C-1 Zone is “Multiple-family dwelling (in a mixed-use project)” (Town Code §

29.20.185(8)(c)) (See Attachment C). The requirement to apply for a Conditional Use Permit (CUP) is applied uniformly to all projects that propose multi-family residences in the C-1 zone.

The Staff Technical Review Letter explains that multi-family residential is not a principally permitted use in the C-1 Zone, and that the C-1 Zone allows ‘multiple-family dwelling (in a mixed-use project)’ with a conditional use permit. Accordingly, the Staff Technical Review Letter provides that because the Project proposes to construct multi-family dwellings but no commercial in the C-1 Zone, the Applicant “must apply for a Conditional Use Permit,” and request that mixed-uses not be required.

Applicant Objection. The Notice states that the “primary issue [is that] CUP’s are not an allowable requirement for Builder’s Remedy projects…because Government Code Section 65589.5 [the “Housing Accountability Act,” or “HAA”] deems projects to be consistent with zoning and general plans once the planning application is complete.” To support this assertion, the Notice cites to Section 65589.5(f)(6)(D)(iii), which provides “Notwithstanding paragraphs (1) to (5), inclusive, all of the following apply to a housing development project that is a builder’s remedy project:….Any project that complies with this paragraph shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, redevelopment plan and implementing instruments, or other similar provision for all purposes, and shall not be considered or treated as a nonconforming lot, use, or structure for any purpose.” The Notice further challenges the Town’s requirement that the Project apply for a CUP on the basis that “CUP’s are, by their very nature, discretionary.” The Notice states that because “with Builder’s

ITEM NO. 18.

Remedy projects all discretion must be exercised in favor of the approval and provision of housing (Gov. Code § 89(a)(2)(L)),” then “CUP process is both irrelevant and improper.” Basis for the Town’s Course of Conduct. The Project does not qualify as a “builder’s remedy project” as defined by the version of the HAA that went into effect on January 1, 2025.

The provisions that the Notice quotes from Section 65589.5 apply only to projects meeting the definition of a “builder’s remedy project” contained in Section 65589.5(h)(11).

The Project is Not a “Builder’s Remedy Project” As Now Defined by the HAA. Section 65589.5(h)(11) provides that a “builder’s remedy project” must not have a density that exceeds the greatest of the following: (a) 50 percent greater than the minimum density deemed appropriate to accommodate housing for the jurisdiction (which is 30 dwelling units/acre for the Town); (b) three times the density allowed by the general plan, zoning, or state law, whichever is greater; or (c) the density that is consistent with the density specified in the housing element [Section 65589.5(h)(11)(C)(i)]. Where any portion of the site is located in a high or highest resource census tract, then the greatest allowable density is 35 units per acre more than the amount allowable pursuant to clause (i) [Section 65589.5(h)(11)(C)(ii)].

Here, the maximum density allowed on the site by the general plan and zoning is 20 dwelling units per acre; no provisions of state law set density for the site. Three times the maximum density is 60 dwelling units per acre, plus 35 dwelling units per acre because the site is in a high opportunity census tract. The maximum density is thus 95 dwelling units per acre.

For the 0.53-acre Project site, the base density allowed is 51 units (rounded up). The Project is proposed to have 24 low income units, entitling the project to a 50 percent density bonus, and so allowing 77 units. The Applicant is proposing to construct 119 units, well in excess of the maximum density for a “builder’s remedy project” as defined by Section 65589.5(h)(11).

Therefore, the provisions to which the Notice cites do not apply to the Project because the Project is not a “builder’s remedy project” for the purposes of the cited sections.

The Project May Utilize the “Builder’s Remedy” Provisions Contained in the 2024 Version of the HAA. Nonetheless, because the Project submitted a preliminary application prior to certification by the California Department of Housing and Community Development (HCD) of the Town’s Sixth Cycle Housing Element, the Project is a “builder’s remedy project” under the 2024 version of the HAA [Section 65589.5(f)(7)(A)]. That version of the HAA stated that, “nothing in this section shall be construed to prohibit a local agency from requiring the housing development project to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the [Town’s] share of the regional housing need” so long as the ordinance, policy, or standard being applied was adopted and in effect at the time that the project submitted its preliminary application [Sections 65589.5(f)(1),(o)]. The Town may therefore require the Project to comply with objective standards in effect when the preliminary application was filed, even if the Town may not be able to deny the project under Section 65589.5(d)(5) (2024).

The HAA Allows the Town to Require a CUP. The requirement to apply for a CUP is an objective, written standard that was in effect at the time that the preliminary application for the Project was submitted. Specifically, the Town’s Zoning Code provides that “the activities listed in the table in section 29.20.185 are allowed [in the C-1 Zone] if a conditional use permit

ITEM NO. 18.
is issued” [Town Code § 29.60.215 (emphasis added)]. Among the conditionally permitted uses for the C-1 Zone is “Multiple-family dwelling (in a mixed-use project)” [Town Code §

29.20.185(8)(c)]. The requirement to apply for a CUP is applied uniformly to all projects that propose a multi-family residential use in the C-1 zone.2 Further, the contention that the review of an application for a CUP is inherently discretionary is entirely speculative. For one, the Staff Technical Review Letter merely requires that the Applicant submit the application for a CUP, which, as explained, is an objective requirement in and of itself. More importantly, the Staff Technical Review Letter does not state or imply that the Town will consider or require the Project to comply with any subjective standards to issue the CUP.

2. Town Consulting Arborist Fee.

Town Requirement. The Staff Technical Review Letter states that review by the Town’s Consulting Arborist is required to provide a peer review of the arborist report submitted by the Applicant, and a deposit of $2,750 is required.

Applicant Objection. Citing to the standards in Section 29.10.0990 of the Town Code, the Notice challenges the Town’s requirement for payment for a fee for review by the Town’s Consulting Arborist on the basis that “the standards of review for the Town Arborist are, by their very nature, discretionary.” The Notice states that because “with Builder’s Remedy projects all discretion must be exercised in favor of the approval and provision of housing” then “the consulting arborist review is both irrelevant and improper.” The Notice also states that because “the Town cannot create new standards that apply to the project after the submission of the SB330 Preliminary Application under Government code Sections 65941, et seq., the Town’s Arborist cannot perform the discretionary review called for in the Town’s Municipal Code.”
Basis for the Town’s Course of Conduct. As explained above, the Project does not qualify as a “builder’s remedy project” under the 2025 version of the HAA. Accordingly, the Town may, under the 2024 version of the HAA, require the Project “to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the [Town’s] share of the regional housing need pursuant to Section 65584” so long as the ordinance, policy, or standard being applied was adopted and in effect at the time that the housing development project submitted its preliminary application [Section 65589.5, subs. (f)(1); (o)]. “Ordinances, policies, and standards” include “permit or processing fees” [Section 65589.5(o)(4)].

The Town has adopted a Tree Protection Ordinance (Division 2 of Chapter 29 of the Town Code) which applies “to every property owner and to every person, corporation, partnership, sole proprietorship or other entity responsible for removing, maintaining or protecting a tree” 2 Even if the Project is redesigned to meet the 2025 definition of a “builder’s remedy project,” the Town could still require an application for a conditional use permit. For projects meeting the 2025 definition, the statute provides that the applicant cannot be required to apply for a legislative approval, such as a general plan or zoning amendment, and cannot be required to apply for any permit not generally required of a project of the same type and density as proposed by the applicant. (§ 65589.5(f)(6)(D)(i), (ii).) A conditional use permit is not a legislative approval. The Town requires all applicants for multifamily projects in commercial zones to apply for a use permit and may require the same for builder’s remedy projects proposing multifamily uses in commercial zones.

ITEM NO. 18.
which trees are enumerated in the Code (See Town Code § 29.10.0960). Where any new development proposes the removal of or impact to one or more protected trees, the Town requires that the application for the development project “include a Tree Survey Plan and Tree Preservation Report based on this survey” [Town Code § 29.10.1000(a)]. The Tree Survey and Tree Preservation Report (together, the “Arborist Report”) are to be prepared by either the applicant’s certified arborist or the Town’s consulting arborist [Town Code §

29.10.1000(a);(c)]. Where the Arborist Report is completed by the applicant’s certified arborist, the Town’s consulting arborist is required to peer review the Arborist Report [Town Code §§ 29.10.1000(b); (c)(2)]. The Arborist Report is required to be submitted as part of the project application and included as part of the staff report to the Town reviewing body upon consideration of the application for a development project [Town Code § 29.10.1000(a); (c)(1); (d)] (See Attachment D).

Since the requirement to provide an Arborist Report as part of the application for a new development is provided in the Town Code and applies uniformly to all projects that propose the removal or impact to a protected tree, this requirement is an objective standard with which the Town can require compliance. Similarly, the requirement to pay a fee to have the submitted Arborist Report reviewed by the Town’s Consulting Arborist is also a written, objective standard that can be found in Town’s Comprehensive Fee Schedule for Fiscal Year 2023/243
. The Fee Schedule was published on the Town’s website at the time that the Project submitted its preliminary application. On page 26, under “Development Services,” the Fee Schedule provides that fees for “consultation” shall be equal to actual cost on an hourly basis. Although that provision establishes a deposit of $2,000, provisions regarding “Fees for Major Projects,” on page 15, state:

If it is anticipated that the application processing costs of selected major projects will significantly exceed the following fees, the Director of Community Development may collect a deposit and charge actual time spent to process the applications based upon current hourly rates.

Here, the staff emailed the Consulting Arborist, who stated that the cost of the review was estimated at $2,500. The Town’s Fee Schedule, on page 21, imposes a 10 percent Administrative Fee on all other fees. The Administrative Fee for the Consulting Arborist’s review totaled $250, resulting in the requested deposit of $2,750.

The requirement to pay for a Consulting Arborist’s review is an objective, written standard that was in effect at the time that the preliminary application for the Project was submitted.

Further, the contention that the Arborist’s review is inherently discretionary is entirely speculative. The Staff Technical Review Letter merely requires that the Applicant submit the deposit for the review, which is an objective requirement in and of itself. More importantly, the Staff Technical Review Letter does not state or imply that the Town will consider or require the Project to comply with any subjective standards. 3 The Town’s fee schedule is published on the Town’s website. The fee schedule applicable to this Project is available here: https://www.losgatosca.gov/DocumentCenter/View/35733/FY23-24-Fee-Schedule?bidId=.

ITEM NO. 18.

3. Town Consulting Architect Fee.

Town Requirement. The Staff Technical Review Letter states that review by the Town’s Consulting Architect requires payment of an $8,250 deposit.

Applicant Objection. The Notice challenges that Town’s requirement for payment of a fee for review by the Town’s Consulting Architect on the basis that “it is unsupported by [the Applicant’s] review of the Town’s Municipal Code” meaning that the Applicant “did not find any reference to a requirement that the Town’s Consulting Architect.” The Notice also objects to this requirement on the basis that “any review of the project is limited the Town’ [sic] objective design standards” which “is traditionally in the purview of the Planning Staff, not an outside architectural consultant” and accordingly requests that the Town provide (1) statutory authorization delegating the power to conduct objective design standard review to the Town’s Consulting Architect and (2) a copy of the contact with the Town’s Consulting Architect demonstrating that their duties include review of projects for objective design standards.

Basis for the Town’s Course of Conduct. The Project does not qualify as a “builder’s remedy project” under the 2025 version of the HAA. Accordingly, the Town may, under the 2024 version of the HAA, require the Project “to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the [Town’s] share of the regional housing need pursuant to Section 65584” so long as the ordinance, policy, or standard being applied was adopted and in effect at the time that the housing development project submitted its preliminary application [Section 65589.5, subs. (f)(1); (o)]. “Ordinances, policies, and standards” includes “design review standards and criteria” and “permit or processing fees” [Section 65589.5(o)(4)].

The Town Council has established the roles and responsibilities of the Town’s Planning Commission and Consulting Architect by resolution [See Attachment E (Town Council Resolution No. 2002-25)]. The Resolution provides that the “architectural consultant will review plans and provide guidance to applicants to ensure plans are in compliance with applicable design standards and guidelines, specific plans and the General Plan” and that “[r]eports on projects that reviewed by the Planning Commission will include the recommendations of the architectural consultant and plans that have been revised to incorporate those recommendations.” (Id.) The Town’s contract with the current Consulting Architect, Cannon Design Group, incorporates the duties established by Resolution No. 2002-25 into the scope of services [See Attachment F (Agreement for Consulting Services, Article II, section 2.1)].

Since the requirement for review by the Consulting Architect applies uniformly to all projects that require review by the Planning Commission, this requirement is an objective standard with which the Town can require compliance. Similarly, the requirement to pay a fee to have the plans reviewed by the Town’s Consulting Architect is also a written, objective standard that can be found in Town’s Comprehensive Fee Schedule for Fiscal Year 2023/244 . The Fee
Schedule was published on the Town’s website at the time that the Project submitted its preliminary application. On page 26, under “Development Services,” it provides that fees for 4 The Town’s fee schedule is published on the Town’s website. The fee schedule applicable to this Project is available here: https://www.losgatosca.gov/DocumentCenter/View/35733/FY23-24-Fee-Schedule?bidId=.

ITEM NO. 18.
“consultation” shall be equal to actual cost on an hourly basis. Although that provision establishes a deposit of $2,000, provisions regarding “Fees for Major Projects,” on page 15, state:

If it is anticipated that the application processing costs of selected major projects will significantly exceed the following fees, the Director of Community Development may collect a deposit and charge actual time spent to process the applications based upon current hourly rates.

Here, the staff called the Consulting Architect, who stated that the cost of the review was estimated at $7,500. The Town’s Fee Schedule, on page 21, imposes a 10 percent Administrative Fee on all other fees. The Administrative Fee for the Consulting Arborist’s review totaled $750, resulting in the requested deposit of $8,250.

The requirement to pay for a Consulting Architect’s review is an objective, written standard that was in effect at the time that the preliminary application for the Project was submitted.

Further, the contention that the Architect’s review is inherently discretionary is entirely speculative. The Staff Technical Review Letter merely requires that the Applicant submit the deposit for the review, which is an objective requirement in and of itself. More importantly, the Staff Technical Review Letter does not state or imply that the Town will consider or require the Project to comply with any subjective standards.

4. Notification to Outside Agencies and Neighboring Properties.

Town Requirement. The Staff Technical Review Letterrequests that the Applicant provide a response letter to VTA’s comments, which were provided to Staff on May 29, 2025 and thereafter forwarded by Staff to the Applicant, to explain which of VTA’s comments have been addressed.

Applicant Objection. The Notice challenges the request to respond to VTA’s comments on the basis that traffic impacts are part of CEQA analysis and therefore do not need to be addressed since the Project is exempt from CEQA. Additionally, the Notice states that “there does not appear to be a basis for imposing exactions from Caltrans and VTA” and that “VTA’s own addition in its email dated May 29, 2025 that it is not providing ADA compliant facilities two blocks away from [the Project] does not obligate [the Applicant] to pay for the VTA coming into compliance with the ADA.” The Notice requests a basis for imposing this exaction on the Project.

Basis for the Town’s Course of Conduct. While the request to respond to VTA’s comment was included in the “consistency” letter, it was a recommendation only. Neither the continued processing of the Project application nor scheduling the Project for public hearing are contingent upon the requirement that the Applicant provide a written response to VTA’s comments.

5. Town’s Below Market-Rate Program Requirements.

Town Requirement. The Staff Technical Review Letter provides that the “floor plans and the ‘Project Description/Letter of Justification’ need to specify which units are Below Market Price (BMP) and specify how compliance with the Town’s BMP requirements at met.” Specifically, the Staff Technical Review Letter states that the “Project Description/Letter of Justification does not mention the Town’s

ITEM NO. 18.

BMP program” and requests that the Applicant provide justification(s) if they do not intend to comply with the BMP unit size or other standards. The Staff Technical Review Letter requests that the Applicant provide a written statement in the Project Description/Letter of Justification about how the Project will comply with the BMP requirements or alternatively, if the Project will not comply any of the BMP requirements, a justification for any such deviation.

Applicant Objection. The Notice challenges both of these aforementioned requirements on the basis that the “Town’s BMP Program is superseded by the California State Housing Laws for this project, including the Housing Crisis Act, the Housing Accountability Act, the Permit Streamlining Act and the related measures. (Cal. Const. Art. XI, Sec. 7.)” Therefore, the Notice concludes, “the Town’s BMP Program is irrelevant to this project.”
Basis for the Town’s Course of Conduct. The Project does not qualify as a “builder’s remedy project” under the 2025 version of the HAA. Accordingly, the Town may, under the 2024 version of the HAA, require the Project “to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the [Town’s] share of the regional housing need pursuant to Section 65584” so long as the ordinance, policy, or standard being applied was adopted and in effect at the time that the housing development project submitted its preliminary application [Section 65589.5, subs. (f)(1); (o)]. “Ordinances, policies, and standards” includes “zoning” and “any other rules, regulations, requirements, and policies of a local agency, as defined in Section 66000, including those relating to development impact fees…and other exactions” [Section 65589.5(o)(4)].

The Town’s BMP program is codified in Division 6 of Article VIII of Chapter 29 of the Town Code and further detailed in the Town’s Below Market Price Housing Program Guidelines (the “Guidelines”).5 The BMP Program is applicable to all residential projects that include five (5) or more residential units or parcels (Town Code § 29.10.3025). As applicable to this Project, the BMP Program requires that “all projects in excess of one hundred (100) market rate units must provide a number of BMP units equal to twenty (20) percent of the market rate units.”6 (Id.) The Guidelines establish additional requirements related to the characteristics of the BMP units, including the size, location and finish of said units (Guidelines, section III).

The requirement to provide BMP units is a written, objective standard that was in effect at the time that the Applicant submitted the preliminary application for the Project. As such, the Town may request additional information to determine how and whether the Applicant intends to comply with the requirement to provide BMP units, or alternatively, whether the 5 The Town’s BMP Program Guidelines are published on the Town’s website and are available here:
https://www.losgatosca.gov/DocumentCenter/View/2773/BMP-POLICIES?bidId=. 6 To qualify as a builder’s remedy project under the 2024 version of the HAA, the Project must be “housing for very low, low, or moderate income households” meaning that either (a) at least 20 percent of the total units shall be sold or rented to lower-income households (as defined in Health and Safety Code Section 50079.5) or (b) 100 percent of the units are sold or rented to persons and families of moderate income (as defined in Health and Safety Code Section 50093) or persons and families of middle income (as defined in Section 65008). (Section 65589.5(d); (h)(3).)

ITEM NO. 18.

Applicant is seeking a waiver from the BMP requirements and the basis for the requested waiver.

State law also requires that occupants of the affordable housing units within a mixed-income multifamily structure shall have the same access to the common entrances and common areas and amenities of that structure as the occupants of the market-rate housing units and that a mixed-income multifamily structure shall not isolate the affordable housing units within that structure to a specific floor or an area on a specific floor (Health and Safety Code § 17929). The Town needs to know the location of the BMP units to confirm that the Project conforms with this requirement.

Finally, state and federal fair housing laws do not allow discrimination against families with children. The Town needs to know the size and number of bedrooms and baths to ensure that the units have the same proportion of bedrooms and baths as the market-rate units and are not all designated for studio and one-bedroom units that are unsuitable for children.

C. There Is No Evidence that the Course of Conduct was Undertaken for an Improper Purpose, Such as to Harass or to Cause Unnecessary Delay or Needless Increases in the Cost of the Proposed Project.

The Notice provides no evidence that the Town’s course of conduct in providing the Staff Technical Review Letter was undertaken for the purpose of harassing the Applicant, causing unnecessary delay, or causing needless increases in Project costs. None of the requirements that the Applicant objects to would necessarily require changes in the Project, nor would they cause an unnecessary delay or increase in cost. The statute cannot be interpreted to mean that an applicant can submit a project inconsistent with Town ordinances, polices, guidelines and standards and then argue that the Town’s actions in pointing out those inconsistencies was taken for an improper purpose.

The Applicant disagrees with some of the requirements contained in the Staff Technical Review Letter. However, even if the Applicant’s arguments are correct, disagreements about the interpretation of State law cannot be considered to have been made for an improper purpose unless the Town’s conclusions were made in bad faith, that is, “frivolous, pretextual, intended to cause unnecessary delay, or entirely without merit” [Section 65589.5(l)]. As described above and in the record, the Town has provided reasoned, good faith arguments for the conclusions in the Staff Technical Review Letter. Many of the arguments made by the Applicant are based on provisions of state law that are not even applicable to its Project.

Without evidence of an improper purpose for the Town’s actions, its actions cannot constitute an “effective disapproval” under Section 65589.5(h)(6)(D).

Instructions on What the Applicant Must Submit or Supplement Findings in response to a Challenged Conduct Notice must provide “clear instructions on what the Applicant must submit or supplement so that the local agency can make a final determination regarding the next necessary approval or set the date and time of the next hearing” [Section 65589.5(h)(6)(D)(iv)(II)].

ITEM NO. 18.

The Applicant must submit or supplement the following so that the Town can make a final determination regarding the next necessary approval and set the date and time of the next hearing:

1. Submit an application for a Conditional Use Permit, and request that the mixed-use component of the conditional use not be required as part of the CUP application. Contact the Project planner, Ryan Safty, when prepared to pay the CUP application fee of $2,358.26 and indicate whether you will be paying the fee by check or credit card.

2. Submit a deposit fee of $2,750 for the Town’s Consulting Arborist to complete a peer review of the arborist report you have submitted, and indicate whether you will be paying the fee by check or credit card.

3. Submit a deposit fee of $8,250 for the Town’s Consulting Architect to complete a review of the Project plans, and indicate whether you will be paying the fee by check or credit card.

4. Submit revised floor plans for the Project specifying which units will be designated as BMP units and detailing the floor plan and number of bedrooms and baths for each BMP unit.

5. Submit a written statement in the Project Description/Letter of Justification either (a) explaining how the Project intends to comply with each of the four BMP Program requirements and state law, or (b) alternatively, if the Project will not comply with one or more of the BMP Program requirements, providing a justification for the requested deviation.

The Town will respond to the request regarding the Project’s eligibility for the CEQA exemption provided by Public Resources Code Section 21080.66 within 30 days. If you disagree with this determination, you may elect to utilize the procedure established under the Housing Accountability Act to assert that the Project is eligible for a CEQA exemption (See Section 65589.5.1).

Attachments:

A. Challenged Conduct Noticed Filed with Town on October 2, 2025 B. Town’s Fifth Planning Staff Technical Review Letter, dated September 17, 2025 C. C-1 Zoning District Standards and Town Code Section 29.20.185 D. Tree Protection Ordinance (Town Code Sections 29.10.0950 – 29.10.1050) E. Resolution No. 2002-25, Resolution of the Town Council of the Town of Los Gatos Governing the Design Review Process and Clarifying the Roles and Responsibilities of the Town Planning Commission and Architectural Consultant
F. Agreement for Consultant Services, dated July 1, 2022, by and between the Town of Los Gatos and Larry Cannon of Cannon Design Group
G. Email with Estimate of Arborist Consulting Costs
Cc: Richard B. Jacobs Kurt Anderson, Architect
[email protected]

ITEM NO. 18.

County of Santa Clara- Clerk- Recorder' s Office
State of California
ti , File Number: ENV25842
lj Q ENVIRONMENTAL FILING
NgTotal
No. of Pages: 14
Feees:: $ 0. 00
File Date: 10/ 09/ 2025
f .
077 Expires: 11/ 08/ 2025
7'4 cti ` LOUIS CHIARAMONTE, Clerk- Recorder
By: Corinne Vasquez, Deputy Clerk- Recorder

SANTA CLARA COUNTY CLERK
I:.. CEQA FILING COVER SHEET THIS SPACE FOR CLERK' S USE ONLY Complete and attach this form to each CEQA Notice filed with the County Clerk

TYPE OR PRINT CLEARLY
Check Document being Filed:

Environmental Impact Report( EIR)
Filing Fee( new project)
0 Previously Paid F&W( must attach F& W receipt and project titles must match) No Effect Determination( F& W letter must be attached)
Mitigated Negative Declaration( MND) or Negative Declaration( ND) El Filing Fee( new project)
Previously Paid F& W( must attach F& W receipt and project titles must match) ElNo Effect Determination( F& W letter must be attached) Notice of Exemption( NOE)
El Other( Please fill in type):

Government Code Section 65589. 5( h)( 6)( D)- Challenged Conduct Notice

1. LEAD AGENCY: Town of Los Gatos

2. LEAD AGENCY EMAIL: rsafty@losgatosca. gov

3. PROJECT TITLE: 14288 Capri Drive

4. APPLICANT NAME: Kurt B. Anderson, AlA PHONE: ( 408) 202-5462

5. APPLICANT EMAIL: kanderson@andarchinc. com

6. APPLICANT ADDRESS: 120 W. Campbell Ave, Suite D, Campbell, CA 95008

7. PROJECTAPPLICANT IS A: Local PublicAgency School District Other Special District [] State Agency El Private Entity

8. NOTICE TO BE POSTED FOR 30 DAYS.

Filing fees are due at the time a Notice of Determination/ Exemption is filed with our office. For more information on filing fees and No Effect Determinations, please refer to California Code of Regulations, Title 14, section 753. 5.

Rev 812023

ATTACHMENT A

ITEM NO. 18.

County of Santa Clara cot. T
Clerk- Recorder' s Office 1 :2'`°'
y?Mr
110 West Tasman Drive, First Floor rn c4<
San Jose, California 95134
408) 299- 5688
11/ 10/2025

TOWN OF LOS GATOS
110 E. Main St.

Los Gatos, CA 95030
Re: CALIFORNIA ENVIRONMENTAL QUALITY ACT POSTINGS
Dear Lead Agency:

Enclosed please find the public copy posted in Santa Clara County Clerk- Recorder' s Office for 30 days per CALIFORNIA CODES PUBLIC RESOURCES CODE SECTION 21152 ( c)
Sincerely,
County Clerk- Recorder a
QARA 0*
l
By:

Mike Louie , Deputy Clerk- Recorder
Board of Supervisors: Sylvia Arenas, Betty Duong, Otto Lee, Susan Ellenberg, Margaret Abe- Koga County Executive: James R. Wiliams

ITEM NO. 18.

From: SoCal Industrial Equities
To: Ryan Saftv; Kurt Anderson; Ben Eilenberq; Richard Jacobs Subject: 14288 Capri Drive- Follow- up re: September 17, 2025 and September 18, 2025 letters Date: Thursday, October 2, 2025 2: 14: 29 PM
Attachments: 9- 18- 2025 Letter, pdf
9- 17- 2025 Letter. df
EXTERNAL SENDER]
Ryan,
I am following up on our letters sent two weeks ago. We have not received a substantive response to either one.

To remind you, the September 17, 2025 letter outlined the CEQA exemption in Public Resources Code Section 20180. 66. The September 18, 2025 letter addressed the improper fees and requirements for the project imposed by the Town.

Please get back to us with a response from the Town on or before October 7, 2025.

Please consider this our request to move forward with the administrative process set forth in Government Code Section 65589. 5( h)( 6)( D). We will consider withdrawing the request depending on the substantive response. The violations are set forth in detail in the September 17, 2025 and September 18, 2025 letters, both of which are attached.

Thank you in advance.

Ben

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
September 17, 2025
The Town of Los Gatos
Sent via email to Ryan Safty and uploaded
RE: CEQA Exemption under Public Resources Code Section 65589. 5 for the project located at 14288 Capri Drive
As per the meeting this morning regarding this project located at 14288 Capri Drive I have been requested to prepare a short memorandum on the question of CEQA exemption for the project.

As you may be aware, AB- 130 was recently passed by the Legislature and signed by Governor Newsom. Among other matters, AB- 130 added Section 20180. 66 to the Public Resources Code.

For your convenience, the link to AB- 130 is
https:// leginfo. legislature. ca. gov/ faces/ billNavClient. xhtml? bill id= 202520260AB130.

Section 21080. 66( a) sets forth an 8- part test to determine whether a project is exempt from CEQA. I have included each of the 8 parts below with an explanation of how this project meets the criteria:

1. The project must be less than 20 acres, or if it is a Builder' s Remedy project, the project must be less than 5 acres. (§ 21080. 66( a)( 1)( A)&( B).) a. This project is a Builder' s Remedy project. Therefore it must be less than 5 acres. b. This project is less than 1 acre.

2. The project site must be either within the boundaries of an incorporated municipality or be located within an urban area as defined by the U. S. Census Bureau. 21080. 66( a)( 2)( A)&( B).)
a. This project is located within the Town of Los Gatos. b. The Town of Los Gatos was incorporated in 1887.

3. The project must be on a parcel that meets any of the following criteria: ( A) the parcel was previously developed with an urban use; or (B) at least 75% of the perimeter of the site adjoins parcels that are developed with urban uses; or( C) at least 75% of the area within one- quarter mile radius of the site is developed with urban uses; or( D) for sites with 4 sides, at least 3 of the 4 sides are developed with urban uses and at least 2/ 3 of the perimeter of the parcel adjoins parcels that are developed with urban uses. a. While any of the four preceding criteria are acceptable, this project meets all of the four different methods of satisfying this question. b. For convenience, I have included a satellite image of the project site:
1 Page 678
ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
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c. The project parcel is already developed for urban use. d. At least 75% of the surrounding parcels are developed for urban use. e. At least 75% of the area within one- quarter mile is developed for urban use. f. All 4 of the 4 sides are developed with urban uses and over 2/ 3 of the perimeter of the site adjoin parcels that are developed for urban uses.

4. The project is consistent with the general plan and/ or zoning. a. This is a Builder' s Remedy project subject to Government Code Section 65589. 5. b. As per Government Code Section 65589. 5( f)(6)( D)( iii), "( f)(6) Notwithstanding paragraphs ( 1) to ( 5), inclusive, all of the following apply to a housing development project that is a builder' s
remedy project: ...( D)( iii) Any project that
complies with this paragraph shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, redevelopment plan and implementing instruments, or other similar provision for all purposes, and shall not be considered or treated as a nonconforming lot, use, or structure for any purpose."
c. Summarized, Builder' s Remedy projects are deemed consistent with general plans and zoning for all purposes.
d. As this is a Builder' s Remedy project, it is therefore legally deemed consistent with the general plan and zoning.

5. The project will be at least one- half of the applicable density specified in subparagraph B) of paragraph ( 3) of subdivision ( c) of Section 65583. 2 of the Government Code. a. This is also known as the " Mullin Density."
b. This means that the project must be at least five units per acre for an unincorporated area in a nonmetropolitan county, 10 units per acre in a suburban jurisdiction, and 15 units per acre in a metropolitan jurisdiction.

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
c. As this is a project in a suburban jurisdiction, the project must have at least 10 units per acre.
d. The project has more than the requisite units per acre.

6. The project satisfies the requirements specified in paragraph ( 6) of subdivision ( a) of Section 65913. 4 of the Government Code.
a. Government Code Section 65913. 4( a)( 6) requires that a project not be on a site that is any of the following:
i. An area of the coastal zone subject to paragraph ( 1) or ( 2) of subdivision a) of Section 30603 of the Public Resources Code.
ii. An area of the coastal zone that is not subject to a certified local coastal program or a certified land use plan.
iii. An area of the coastal zone that is vulnerable to five feet of sea level rise, as determined by the National Oceanic and Atmospheric Administration, the Ocean Protection Council, the United States Geological Survey, the University of California, or a local government' s coastal hazards vulnerability assessment.
iv. In a parcel within the coastal zone that is not zoned for multifamily housing.
v. In a parcel in the coastal zone and located on either of the following:

1. On, or within a 100- foot radius of, a wetland, as defined in Section 30121 of the Public Resources Code.

2. On prime agricultural land, as defined in Sections 30113 and 30241 of the Public Resources Code.
b. This project is not in a coastal zone, therefore none of the above criteria are implicated.

7. The project does not require the demolition of a historic structure. a. There are no historic structures on the site.

8. For a project that was deemed complete on or after January 1, 2025, no portion of the project is designated for use as a hotel, motel, bed and breakfast inn, or other transient lodging.
a. This project was deemed complete after January 1, 2025. b. No portion of this project is designated for use as a hotel, motel, bed and breakfast inn, or other transient lodging.

Therefore, as set forth in detail above, this project falls within the CEQA exemption created by AB130 and codified in Public Resources Code Section 21080. 66( a).

Please confirm to me and my client that the Town will comply with Public Resources Code Section 21080. 66( a) and issue a determination that this project is CEQA exempt on or before September 26, 2025.

Sincerely,
Richard B. Jacobs

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
September 18, 2025
The Town of Los Gatos
Sent via email to Ryan Safty and uploaded
RE: Improper Requirements And Fees for the project located at 14288 Capri Drive As per the meeting yesterday morning regarding this project located at 14288 Capri Drive I have been requested to prepare a short memorandum on the question of whether there are improper requirements and fees being demanded by the Town of Los Gatos. There are.

This letter specifically addresses the items listed in the September 17, 2025 Staff Technical Review for the project.

1. Project Consistency Related Items: Letters
a. Item 1—" Multi- Family Residential is not a principally permitted use ( or an allowed conditional use) in the C- 1 zone. The C- 1 zone allows " multiple-family dwelling ( in a mixed- use project)" with a conditional use permit. You must apply for a Conditional Use Permit, and request that the " mixed- use" component of the be removed as a part of the application. • Contact project planner when you are ready to pay the CUP fee, and staff will invoice. Please also confirm if you will be paying by check or credit card. • Previous deficiency comment moved to consistency. • This remains outstanding. The fee is now$ 3, 524. 26 based on the Town' s new fee schedule. See the Town' s letters from March 3, 2025, and May 27, 2025, addressing this comment and applicant responses in detail. The application materials continue to make the same argument, without responding to the Town' s responses. • The response letter submitted on July 18, 2025, as well as the letter from the Law Office of Richard Jacobs dated May 16, 2025, state that this requirement is not in the " New Residential Submittal Requirements." As noted in the staff' s response to the May 16, 2025, letter, the " New Residential Submittal Requirements" is not the Town' s submittal checklist for a discretionary planning application. The " New Residential Submittal Requirements" is a checklist for Building Permit submittals"
i. The primary issue that CUP' s are not an allowable requirement for Builder' s Remedy projects. This is because Government Code Section 65589. 5 deems projects to be consistent with zoning and general plans once the planning application is complete.

1. As per Government Code Section 65589. 5( f)(6)( D)( iii), f)(6) Notwithstanding paragraphs( 1) to (5), inclusive, all of the following apply to a housing development project that is a builder' s
remedy project: ...( D)( iii) Any project that complies with this paragraph shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, redevelopment plan and implementing

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
instruments, or other similar provision for all purposes, and shall not be considered or treated as a nonconforming lot, use, or structure for any purpose."

2. CUP' s are only required for projects that are inconsistent with the by right" uses for a zone. In this case, Government Code Section 65589. 5( f)(6)( D)( iii) makes this project consistent with the " by right" uses for the zone.
ii. The second issue is that CUP' s are, by their very nature, discretionary.

1. According to Section 29. 20.180 of the Town' s Municipal Code, Conditional use permits. The adoption of this chapter is based on the premise that there are uses which can be specified for each zone which, in practically all instances, will be mutually compatible. In addition, there are other uses which might be compatible with ordinarily allowed uses if properly located and regulated. These are called conditional uses. They are listed in section 29.20. 185. However, the listing of a conditional use does not indicate that the use must be allowed. There will be locations or instances where a specified conditional use is inappropriate in a zone regardless of the extent of regulation."

2. However, with Builder' s Remedy projects all discretion must be exercised in favor of the approval and provision of housing. ( Gov.

Code § 89( a)( 2)( L).) Therefore, any discretion must be exercised in favor of the project, meaning that the CUP process is both irrelevant and improper.
iii. The third issue is that CUP' s do not address the only five questions that may be addressed by the Town under Government Code Section 65589. 5( d)( 5).

1. As noted above, this project is a Builder' s Remedy project under Government Code Section 65589. 5. As this project was submitted while the Town' s Housing Element was non- compliant, the five questions that may be addressed are encapsulated in Government Code Section 65589. 5( d)( 5). They are:
a. ( 1) The jurisdiction has adopted a housing element
pursuant to this article that has been revised in accordance with Section 65588, is in substantial compliance with this article, and the jurisdiction has met or exceeded its share of the regional housing need allocation pursuant to Section 65584 for the planning period for the income category
proposed for the housing development project, provided
that any disapproval or conditional approval shall not be based on any of the reasons prohibited by Section 65008.

If the housing development project includes a mix of
income categories, and the jurisdiction has not met or
exceeded its share of the regional housing need for one or

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
more of those categories, then this paragraph shall not be used to disapprove or conditionally approve the housing development project. The share of the regional housing
need met by the jurisdiction shall be calculated
consistently with the forms and definitions that may be adopted by the Department of Housing and Community
Development pursuant to Section 65400. In the case of an emergency shelter,the jurisdiction shall have met or
exceeded the need for emergency shelter, as identified
pursuant to paragraph ( 7) of subdivision ( a) of Section 65583. Any disapproval or conditional approval pursuant to this paragraph shall be in accordance with applicable law, rule, or standards.
b. ( 2) The housing development project or emergency shelter as proposed would have a specific, adverse impact upon
the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, 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. The following shall not constitute a specific, adverse impact upon the public health or safety:
i. ( A) Inconsistency with the zoning ordinance or
general plan land use designation.
ii. ( B) The eligibility to claim a welfare exemption
under subdivision (g) of Section 214 of the Revenue
and Taxation Code.
c. ( 3) The denial of the housing development project or imposition of conditions is required in order to comply with specific state or federal law, and there is no feasible method to comply without rendering the development
unaffordable to low- and moderate- income households or rendering the development of the emergency shelter
financially infeasible.
d. ( 4) The housing development project or emergency shelter is proposed on land zoned for agriculture or resource
preservation that is surrounded on at least two sides by land being used for agricultural or resource preservation

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
purposes, or which does not have adequate water or
wastewater facilities to serve the project.
e. ( 5) On the date an application for the housing
development project or emergency shelter was deemed
complete, the jurisdiction had adopted a revised housing element that was in substantial compliance with this
article, and the housing development project or
emergency shelter was inconsistent with both the
jurisdiction' s zoning ordinance and general plan land use designation as specified in any element of the general
plan.
i. ( A) This paragraph shall not be utilized to
disapprove or conditionally approve a housing
development project proposed on a site, including
a candidate site for rezoning, that is identified as
suitable or available for very low, low-, or
moderate-income households in the jurisdiction' s
housing element if the housing development
project is consistent with the density specified in
the housing element, even though the housing
development project was inconsistent with both
the jurisdiction' s zoning ordinance and general plan
land use designation on the date the application
was deemed complete.
ii. ( B) If the local agency has failed to identify a zone or zones where emergency shelters are allowed as
a permitted use without a conditional use or other
discretionary permit, has failed to demonstrate
that the identified zone or zones include sufficient
capacity to accommodate the need for emergency
shelter identified in paragraph ( 7) of subdivision ( a) of Section 65583, or has failed to demonstrate that
the identified zone or zones can accommodate at
least one emergency shelter, as required by
paragraph ( 4) of subdivision ( a) of Section 65583,
then this paragraph shall not be utilized to
disapprove or conditionally approve an emergency
shelter proposed for a site designated in any
element of the general plan for industrial,
commercial, or multifamily residential uses. In any
action in court, the burden of proof shall be on the
local agency to show that its housing element does
satisfy the requirements of paragraph (4) of
subdivision ( a) of Section 65583.

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
f. A CUP does not fit this five point analysis.
b. Item 3—" CEQA: Clarify whether the applicant team anticipates providing any technical studies related to environmental analysis ( traffic, habitat, cultural, air quality, noise, soils etc.) for peer review by the Town Environmental Consultants.

If not provided, the studies determined to be required by the Environmental Consultant will be prepared by the Town Environmental Consultants at the cost of the applicant. • You previously indicated via email that your team will prepare an Arborist Report and Traffic Study. Please confirm. Additionally, an email was forwarded to your team on 9/ 13/ 24, requesting some additional information in the Phase I ESA and the Noise Report. Please provide a response. • The response letter uploaded in July 2025 states that, " under the new laws passed, CEQA no longer applies to this project." Please specify which CEQA exemption you believe applies to this project, and provide substantial evidence that the project meets each requirement of the exemption. Staff will then review to determine eligibility.
i. This item has already been addressed in my letter dated September 17, 2025, a courtesy copy of which is attached hereto as Exhibit 1. ii. I will also note, to the extent that the Town wishes to attempt to seek additional reports on environmental matters that would be addressed in the CEQA process, those reports are now unnecessary as this project is CEQA exempt.
c. Item 4—" CEQA: Staff is coordinating with Town Environmental Consultants to determine what environmental analysis will be required for the project.

Environmental analysis is required at cost to the applicant. Staff will require payment of a deposit at a future date. • The response letter uploaded in July 2025 states that, " under the new laws passed, CEQA no longer applies to this project." Please see response to# 9 above."
i. This item has already been addressed in my letter dated September 17, 2025, a courtesy copy of which is attached hereto as Exhibit 1. ii. I will also note, to the extent that the Town wishes to attempt to seek additional reports on environmental matters that would be addressed in the CEQA process, those reports are now unnecessary as this project is CEQA exempt.
d. Item 5—" Review by the Town' s Consulting Arborist is required to provide a peer review of the arborist report submitted by the applicant. A deposit payment of 2, 750 is required. • This continues to remain outstanding." i. The primary issue is that the standards of review for the Town Arborist are, by their very nature, discretionary.

1. According to Section 29. 10. 0990 of the Town' s Municipal Code, Standards of review.

2. The Director or deciding body shall review each application for a tree removal permit required by this division using the following standards of review. The standards of review are intended to serve as criteria for evaluating tree removal requests and the basis upon

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
which the Director or the deciding body will subsequently determine whether or not one ( 1) or more of the Required Findings listed in section 29. 10. 0992 can be made. ( 1) The condition of the tree or trees with respect to: ( a) disease, ( b) imminent danger of falling, ( c) structural failure, ( d) proximity to existing or proposed structures, ( e) structural damage to a building, or (f) a public nuisance caused by a tree. The International Society of Arboriculture (ISA) Best Management Practices for Tree Risk Assessment shall be used where
appropriate in determining a Tree Risk Rating.( 2) The condition of the tree giving rise to the permit application cannot be reduced to a less than significant level by the reasonable application of preservation, preventative measures or routine
maintenance.( 3) The removal of the tree( s) will not result in a density of trees or tree cover that is inconsistent with the neighborhood.( 4)The number of trees the particular parcel can adequately support according to good urban forestry practices, or whether a protected tree is a detriment to or crowding another protected tree.( 5) In connection with a proposed subdivision of land into two (2) or more parcels, the removal of a protected tree is unavoidable due to restricted access to the property or deemed necessary to repair a geologic hazard ( landslide, repairs, etc.).( 6) Except for properties located within the hillsides, the retention of a protected tree would result in reduction of the otherwise- permissible building envelope by more than twenty-five 25) percent.( 7)The Hillside Development Standards and
Guidelines.( 8) Removal of the protected tree(s) will not result in a substantial adverse change in the site' s aesthetic and biological significance; the topography of the land and the effect of the removal of the tree on erosion, soil retention, or diversion or increased flow of surface waters.( 9) Whether the Protected Tree has a significant impact on the property. Significant impact from a tree is defined in section 29. 10. 0955. Definitions.( 10) The species, size ( diameter, canopy, height), estimated age and location on the property of the protected tree"

3. However, with Builder' s Remedy projects all discretion must be exercised in favor of the approval and provision of housing. ( Gov.

Code § 89( a)( 2)( L).) Therefore, any discretion must be exercised in favor of the project, meaning that the consulting arborist review is both irrelevant and improper.

4. As the Town cannot create new standards to apply to the project after the submission of the SB330 Preliminary Application under Government Code Sections 65941 et seq., the Town' s Arborist

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
cannot perform the discretionary review called for in the Town' s Municipal Code.
e. Item 6—" Review by the Town' s Consulting Architect requires payment of a 8, 250 deposit. • This continues to remain outstanding." i. The primary issue for this requirement is that it is unsupported by my review of the Town' s Municipal Code. I did not find any reference to a requirement that the Town' s Consulting Architect be retained to review the project.
ii. The second issue is that any review of the project is limited to the Town' objective design standards in place at the time of the submission of the SB330 Preliminary Application. ( Gov. Code § 65589. 5( f).) Review of the objective design standards is traditionally the purview of the Planning Staff, not an outside architectural consultant. If you contend that the Town' s Consulting Architect is the party conducting the Town' s objective design standard analysis, please provide the following:

1. The statutory authorization delegating that power to the Town' s Consulting Architect; and

2. The contract for the Town' s Consulting Architect showing that his/ her duties include the review of projects for objective design standards.
f. Item 7—" Please reach out to all necessary outside agencies and neighboring properties regarding this project( Caltrans, VTA, FAA for the helipad, etc.). • plan. review@vta. org • This remains outstanding. The July 2025 response letter says that VTA communication has already been provided. Staff has not been provided with this information. Staff reached out to VTA, who provided comments on 5/ 29/ 25, which were forwarded to your team. Provide a response letter to VTA' s comments, explaining what has been addressed." i. There is no helipad on this project, so the FAA is irrelevant. ii. My clients have already posted all required signage regarding the development providing notice to the neighbors. Please send us any statutory authority for additional requirements regarding noticing the neighbors.
iii. As to Caltrans and VTA, traffic impacts are part of the CEQA analysis. This item has already been addressed in my letter dated September 17, 2025, a courtesy copy of which is attached hereto as Exhibit 1. iv. Finally, there does not appear to be a basis for imposing exactions from Caltrans and VTA. The VTA' s own admission in its email dated May 29, 2025 that it is not providing ADA compliant facilities two blocks away from my client' s project does not obligate my client to pay for the VTA coming into compliance with the ADA. Please provide any basis for imposing this exaction on the project.
g. Item 8—" Below Market Price Units: The floor plans and the " Project Description/ Letter of Justification" need to specify which units are Below Market Price ( BMP) and specify how compliance with the Town' s BMP requirements are

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
met. Detailed floor plans for each unit must be provided. The letter should respond to each of the four characteristics listed in Section III below, and the plans should contain enough information so that staff can determine that the size of units are compatible with the market rate, that the location of BMP units are dispersed throughout the proposal, that the exterior appearance be indiscernible from the market rate units, and that all project facilities and amenities be available to the BMP units. Pursuant to the Town' s Below Market Price Housing Program, Section III ( Characteristics of BMP Units): A. Size of units: BMP dwelling units should to the extent possible, be consistent with the market rate units in the project. The Town and developer may negotiate regarding the size of units if more units than required are to be provided. BMP units should be provided proportionately in the same unit type mix( number of bedrooms) as the market rate units. In consideration of the household size of the households on the current program interest list, the Town and developer may negotiate to provide a greater proportion of a particular unit type. There should to the extent possible, not be a significant identifiable difference between the BMP and market-rate units visible from the exterior. The size and design of the BMP units should to the extent possible, be consistent with the market- rate units in the development. The goal of the BMP Program is for a seamless integration of the BMP units with the market- rate units in a development. B. Location of units: BMP units shall be dispersed throughout the development, to the extent feasible, in all buildings, on each floor, and in each project phase. A concentration of BMP units in one location is not desirable and will generally not be allowed. C. Finish of units: The external appearance of BMP units should be indiscernible to that of the market rate units in the project. The internal finish of BMP units should be identical to that of the market rate units in the project, except that the developer may request Town approval of substitutions for luxury interior finishes, appliances, or fixtures, if such substitutions do not violate any Town code requirement. D. Project Facilities: All project facilities and amenities, including parking, must be available on the same basis to the BMP units as to the market rate units in the project, to the extent feasible, unless the deciding body approves a reduction in parking for the BMP units. • This remains outstanding.

The Project Description/ Letter of Justification does not mention the Town' s BMP program. If the Town' s BMP program would not be complied with regarding BMP unit size or other standards, please provide the justification for this deviation." i. The Town' s BMP program is superseded by the California State Housing Laws for this project, including the Housing Crisis Act, the Housing Accountability Act, the Permit Streamlining Act and the related measures.

Cal. Const. Art. XI, Sec. 7.) Therefore, the Town' s BMP program is irrelevant to this project.
h. Item 10—" Project Description/ Letter of Justification: ( Updated 7/ 17/ 25)- Staff is requesting that this information be included in the revised " Project Description/ Letter of Justification". • See comment above regarding BMP information included in the letter. The letter needs to also specify the exact

ITEM NO. 18.

LAW OFFICE OF RICHARD B. JACOBS
number of proposed BMP units ( not a percentage). • This continues to remain outstanding (BMP information). The July 2025 response letter says that this was included in the plans. However, staff is asking for a written statement in the Project Description/ Letter of Justification. If the Town' s BMP program would not be complied with regarding BMP unit size or other standards, please provide the justification for this deviation."
i. The Town' s BMP program is superseded by the California State Housing Laws for this project, including the Housing Crisis Act, the Housing Accountability Act, the Permit Streamlining Act and the related measures.

Cal. Const. Art. XI, Sec. 7.) Therefore, the Town' s BMP program is irrelevant to this project.

While my client is happy to work with the Town on any items that do not conflict with the State Housing Laws, these items do conflict with those laws and therefore are improper restrictions and exactions on the project.

Please confirm to me and my client that the Town will comply with the State Housing Laws and rescind the foregoing requirements.

Sincerely,
Richard B. Jacobs