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Answer to Verified Petition for Writ of Mandate

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TOWN OF LOS GATOSROBERT SCHULTZ (Bar No. 128938)TOWN ATTORNEY110 East Main StreetLos Gatos CA 95030Telephone: 408.354.6818Facsimile: [email protected]

RICHARDS, WATSON & GERSHONA Professional Corporation

T. PETER PIERCE (Bar No. 160408)[email protected] G. MCDONALD (Bar No. 245587)[email protected] Monterey Street, Suite 201San Luis Obispo, California 93401Telephone: 805.439.3515Facsimile: 800.552.0078

Attorneys for RespondentTOWN OF LOS GATOS

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

EDEN HOUSING, INC., SUMMERHILLHOMES LLC, and GROSVENOR USALIMITED,

Petitioners,vs.

TOWN OF LOS GATOS, and DOES I-V,

Respondents.

Case No. 16CV300733

ANSWER TO VERIFIED PETITIONFOR WRIT OF MANDATE

[Exempt from filing fees pursuant to Govt. Code § 6103]

Action Filed: October 6, 2016

Respondent Town of Los Gatos (“Town” or “Respondent”) for itself and for no

other parties, answers the Verified Petition for Writ of Mandate (“Petition”) filed by

Petitioners Eden Housing, Inc., SummerHill Homes LLC, and Grosvenor USA Limited

(collectively referenced herein as “Petitioners”) by admitting, denying, and alleging as

follows:

1. In response to lines 2-11 of paragraph 1, page 2 of the Petition, Respondent

admits and alleges that the Housing Element Law, the Housing Accountability Act, the

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-2-Answer to Verified Petition for Writ of Mandate

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Density Bonus Law, and Government Code sections 65580, et seq., 65589.5, and 65915-

65918 speak for themselves and that no further response to this portion of paragraph 1 is

required.

In response to lines 12-13 of paragraph 1, page 2 of the Petition, Respondent denies

each and every allegation contained therein.

In response to lines 14-21 of paragraph 1, page 2 of the Petition, Respondent admits

and alleges that Petitioners, along with other landowner parties who are not named in the

Petition, were co-applicants for the North 40 Phase 1 Architecture and Site Application S-

13-090 and Vesting Tentative Map M-13-014 (“Applications”), which proposed to develop

a new multi-use, multi-story development consisting of 320 residential units, including 50

affordable senior units, approximately 66,800 square feet of commercial floor area,

including a market hall, on and off-site improvements, and a vesting tentative map

(“Project”). Respondent further admits and alleges that the Town Council voted 3-2 on

September 1, 2016, to deny the Applications and voted 5-0 on September 6, 2016, to adopt

Resolution No. 2016-046, entitled “Denying a Request for the Construction of a New

Multi-Use, Multi-Story Development Consisting of 320 Residential Units, Which Includes

50 Affordable Senior Units; Approximately 66,800 Square Feet of Commercial Floor Area,

which Includes Market Hall; On-Site and Off-Ste Improvements; and a Vesting Tentative

Map on Property Zoned North 40 Specific Plan.” Except as expressly admitted and alleged

herein, Respondent denies the remaining allegations contained in lines 14-21 of paragraph

1, page 2 of the Petition.

In response to paragraph 1, lines 22-26 on page 2 and lines 1-4 on page 3 of the

Petition, Respondent admits and alleges that it adopted the North 40 Specific Plan

(“Specific Plan”) on June 17, 2015, that said Specific Plan speaks for itself, and that the

Town’s Housing Element speaks for itself. Except as expressly admitted and alleged

herein, Respondent denies the remaining allegations contained in paragraph 1, lines 22-26

on page 2 and lines 1-4 on page 3 of the Petition.

In response to paragraph 1, lines 5-20 and lines 27-28 on page 3 of the Petition,

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Respondent denies the allegations contained therein.

In response to paragraph 1, lines 21-25 on page 3 of the Petition, Respondent admits

and alleges that correspondences from the California Department of Housing and

Community Development (“HCD”) and from the law offices of Remy, Moose & Manley

was submitted to the Town Council during the hearings on the Applications, and that said

correspondences speak for themselves. Except as expressly admitted and alleged herein,

Respondent denies the remaining allegations contained in paragraph 1, lines 21-25 on page

3 of the Petition.

In response to paragraph 1, lines 1-9 on page 4 of the Petition, Respondent admits

and alleges that the statements of members of the Town Council speak for themselves and

that no further response is required.

In response to paragraph 1, lines 10-19 on page 4 of the Petition, Respondent denies

the allegations contained therein.

2. Respondent admits and alleges that Petitioner Eden Housing, Inc. was one of

the applicants for the Applications. Except as expressly admitted and alleged herein,

Respondent lacks sufficient understanding or belief to enable it to affirm or deny the

remaining allegations contained in paragraph 2 and, on that basis, denies the remaining

allegations contained in paragraph 2 of the Petition.

3. Respondent admits and alleges that Petitioner SummerHill Homes LLC was

one of the applicants for the Applications. Except as expressly admitted and alleged herein,




4. Respondent admits and alleges that Petitioner Grosvenor USA Limited was

one of the applicants for the Applications. Except as expressly admitted and alleged herein,




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5. Respondent admits that it is a general law city located in Santa Clara County,

in the State of California. Except as so expressly admitted and alleged, Respondent denies

the remaining allegations contained in paragraph 5 of the Petition.

6. Respondent lacks sufficient understanding or belief to enable it to admit or

deny the allegations contained in paragraph 6 of the Petition and on that basis, denies the

allegations contained therein.

7. Respondent lacks sufficient understanding or belief to enable it to admit or

deny the allegations contained in paragraph 7 of the Petition and on that basis, denies the


8. Respondent admits and alleges that this Court has jurisdiction over this

action. Respondent further admits and alleges that Code of Civil Procedure sections 1085

and 1094.5, and Government Code sections 65589.5, 65915, and 66499.37, speak for

themselves. Except as expressly admitted and alleged herein, Respondent denies the

remaining allegations contained in paragraph 8 of the Petition.

9. Respondent admits the allegations contained in paragraph 9 of the Petition.

10. Respondent lacks sufficient information or belief to enable it to admit or to

deny the allegations contained in paragraph 10 of the Petition and, on that basis, denies the


11. Respondent denies the allegations contained in paragraph 11 of the Petition.



14. Respondent admits and alleges that the Housing Element Law speaks for

itself, that paragraph 14 purports to set forth statements of law and legal conclusions, and

that no further response to paragraph 14 of the Petition is required. To the extent a further

response may be required, Respondent denies the allegations contained in paragraph 14 of

the Petition.

15. Respondent admits and alleges that the Housing Element Law speaks for

itself, that paragraph 15 purports to set forth statements of law and legal conclusions, and

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that no further response to paragraph 15 of the Petition is required. To the extent a further

response may be required, Respondent denies the allegations contained in paragraph 15 of

the Petition.

16. Respondent admits and alleges that the Regional Housing Needs Allocation

for Respondent for 2014-2022 is 619 units and that paragraph 16 purports to set forth

statements of law and legal conclusions to which no response is required. Respondent

further admits and alleges that its Housing Element speaks for itself. Respondent further

admits and alleges that, to the extent a further response is required, Respondent lacks

sufficient information or belief to enable it to admit or to deny the remaining allegations

contained in paragraph 16 of the Petition and, on that basis, denies said remaining

allegations.

17. In response to paragraph 17 of the Petition, Respondent denies that the

Housing Element Advisory Board recommended the North 40 Area as the primary site to

fulfill the Town’s RHNA requirements. Except as so expressly denied herein, Respondent

admits the remaining allegations contained in paragraph 17 of the Petition.

18. In response to the allegations contained in paragraph 18 of the Petition,

Respondent admits and alleges that the Town submitted its 2015-2023 Housing Element to

HCD on or about September 8, 2014, and that HCD did not certify the Housing Element at

that time for the reasons explained in a letter, and its enclosure, dated November 7, 2014.

Respondent further admits and alleges that said letter and its enclosure speak for themselves

and that no further response to paragraph 18 of the Petition is required. To the extent a

further response is required and except as expressly admitted and alleged herein,

Respondent denies the remaining allegations contained in paragraph 18 of the Petition.


Respondent admits and alleges that the Housing Element Law and any letters from HCD

regarding the Town’s Housing Element speak for themselves and that no further response is

required. To the extent a further response is required, Respondent denies the allegations

contained in paragraph 19 of the Petition.

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Respondent admits and alleges that its final 2015-2023 Housing Element was adopted on

May 5, 2015, and certified by HCD on or about May 20, 2015. Respondent further admits

and alleges that the Housing Element, including Action Items HOU-1.7 and HOU-2.4

contained therein, speak for themselves and that no further response to paragraph 20 of the

Petition is required. To extent a further response is required and except as expressly

admitted and alleged herein, Respondent denies the allegations contained in paragraph 20

of the Petition.



Respondent admits and alleges that the HCD’s May 20, 2015 letter and Housing Element

Action Item HOU-1.7 speak for themselves and that no further response is required.


24. Respondent admits the allegations contained in paragraph 24. In addition,

Respondent further admits and alleges that Petitioners’ proposed Project is comprised of

approximately 20.7 acres, located within the southern half of the Specific Plan area, and

that much of the site is a walnut orchard.


Respondent admits and alleges that the Town adopted the 2020 General Plan on September

20, 2010, that said General Plan speaks for itself, and that no further response is required.

To the extent a further response is required and except as expressly admitted and alleged

herein, Respondent denies the allegations contained in paragraph 25 of the Petition.


Respondent admits and alleges that on or about March 11, 2011, the Town Council formed

the North 40 Specific Plan Advisory Committee made up of representatives of the Town

Council, the Planning Commission, and community members with the goal of serving as an

advisory committee to the Town Council and the Planning Commission through

coordination with staff and interaction with the community. Respondent further admits and

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alleges that the North 40 Specific Plan Advisory Committee participated in over 17

meetings over the course of two years and concluded their work in October 2013.

Respondent further admits and alleges that Town Council Members Barbara Spector,

Marico Sayoc, and Marcia Jensen each served on the North 40 Specific Plan Advisory

Committee at some point in time. Except as expressly admitted and alleged herein,



Respondent admits and alleges that representatives of Petitioners participated in public

workshops and hearings held regarding the Specific Plan. Except as expressly admitted and

alleged herein, Respondent denies the remaining allegations contained in paragraph 27 of

the Petition.



Respondent admits and alleges that Town Ordinance No. 2242 amended the Town’s Zoning

Map to add a new zoning district called “North Forty Specific Plan,” that said ordinance

and the Specific Plan speak for themselves, and that no further response is required.


Respondent admits and alleges that the Town Council established guiding principles for the

development of the North 40 specific plan, that said guiding principles and the North 40

Specific Plan speak for themselves, and that no further response is required.


Respondent admits and alleges that the North 40 Specific Plan speaks for itself and that no

further response is required.


Respondent admits and alleges that the North 40 Specific Plan speaks for itself and that no



Respondent admits and alleges that Petitioners submitted applications to the Town on or

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about November 13, 2013, for Architecture and Site approval and a Vesting Tentative Map,

which proposed to develop 20.7 acres, encompassing the entire Lark District and most of

the Transition District identified in the North 40 Specific Plan, with the majority of the

residential units allowed within the Specific Plan area (237 of the 270 permitted) plus a

State Density Bonus of an additional 83 units and approximately 66,800 square feet of

commercial space. Respondent further admits and alleges that the Vesting Tentative Map

proposed to subdivide the 20.3-acre area into 113 lots with 320 residential condominiums.

Respondent further admits and alleges that the Specific Plan speaks for itself. Except as so

expressly admitted and alleged herein, Respondent denies the remaining allegations




Respondent admits and alleges that the Specific Plan speaks for itself. Respondent further

admits and alleges that the proposed Project would have provided 39% open space,

including 23% “green” open space, approximately 1 acre of private open space, and

approximately 7 acres of common open space with all but the private yards within the

Garden Cluster units being open to the public. Except as expressly admitted and alleged

herein, Respondent denies the remaining allegations contained in paragraph 35 of the

Petition.



Respondent admits and alleges that the Town retained Cannon Design Group to review the

Project plans, that Cannon Design Group issued a report dated December 18, 2015, that

said report speaks for itself, and that no further response is required.


Respondent admits and alleges that Petitioners’ representatives submitted a letter dated

February 8, 2016, to the Town, that Cannon Design Group issued a report dated March 21,

2016, that said letter and said report speak for themselves, and that no further response is

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required.


Respondent admits and alleges that the Town’s Historic Preservation Committee reviewed

the Applications at its meeting held on January 27, 2016, that it made certain

recommendations concerning the Applications, that said recommendations speak for

themselves, and that no further response is required.



March 10, 2016, to the Town that was entitled “Revised Density Bonus Program

Application – North 40” and that said letter speaks for itself. Respondent further admits

and alleges that Government Code section 65915 speaks for itself and that no further

response is required.


Respondent admits and alleges that the Town Planning Commission considered the

Applications at a public hearing held on March 30, 2016, that a staff report was issued for

that hearing, that said staff report speaks for itself, and that no further response is required.


Respondent admits and alleges that Petitioners installed story poles on the Project site and

that the Town’s Story Pole Policy speaks for itself. Except as so expressly admitted and

alleged herein, Respondent denies the remaining allegations contained in paragraph 42 of

the Petition.


Respondent admits and alleges that the Town Planning Commission held four public

hearings to consider the Applications on March 30, April 27, July 12, and July 13, 2016,

that the Town Planning Commission recommended that the Town Council deny the

Applications, and that said recommendation and the reasons stated therefor speak for

themselves. Except as so expressly admitted and alleged herein, Respondent denies the


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Respondent admits and alleges that the Town issued a staff report dated August 4, 2016,

that said report speaks for itself, and that no further response is required.


Respondent admits and alleges that the August 4, 2016 staff report speaks for itself and that

no further response is required.



Respondent admits and alleges that the Town Housing Element speaks for itself and that no



Respondent admits and alleges that the Town received a letter from HCD dated August 25,

2016, and that said letter speaks for itself. Except as so expressly admitted and alleged


Petition.



Respondent admits and alleges that the Town Council considered the Applications at a

public hearing held on August 9, 2016, and that it continued the hearing to August 11,

2016, following the conclusion of public testimony. Respondent further admits and alleges

that members of the public and representatives of various organizations provided testimony

at the August 9, 2016 hearing, that said testimony speaks for itself, and that no further

response is to the allegations contained in paragraph 51 of the Petition is required. To the

extent a further response may be required and except as so expressly admitted and alleged


Petition.


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August 11, 2016, to the Town along with certain attachments, that said letter and

attachments speak for themselves, and that no further response is required.


Respondent admits and alleges that the Town Council held a continued hearing to consider

the Applications on August 11, 2016, that no new public testimony was taken on the

Applications at that time, that the Council continued the hearing to August 16, 2016, that

the Council’s deliberations and statements made at said hearing speak for themselves, and




the Applications on August 16, 2016, that at said meeting members of the Town Council

made motions to approve and to deny the Applications subject to certain identified findings

and conditions but such motions all failed, and that the Town Council ultimately voted to

continue the hearing to September 1, 2016, with direction given to staff to return with

certain additional information. Respondent further admits and alleges that the deliberations

and statements of members of the Town Council at the August 16, 2016 hearing, including

the motions made and directions given, all speak for themselves, and that no further

response to the allegations contained in paragraph 54 of the Petition is required. To the

extent that a further response is required and except as so expressly admitted and alleged


Petition.


Respondent admits and alleges that Petitioners’ representatives submitted a letter, with

enclosures, dated August 25, 2016, to the Town, that said letter and enclosures speak for

themselves, and that no further response is required.


Respondent admits and alleges that the Town received a letter from HCD dated August 25,

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2016, that said letter speaks for itself, and that no further response is required.


Respondent admits and alleges that Remy, Moose, and Manly, LLP, provided the Town

with a memorandum dated August 26, 2016, that said memorandum speaks for itself, and

that no further response is required. To the extent a further response is required and except

as so expressly admitted and alleged herein, Respondent denies the remaining allegations



Respondent admits and alleges that a staff report was issued for the Town Council’s

September 1, 2016 continued hearing to consider the Applications and that said staff report

speaks for itself. Except as so expressly admitted and alleged herein, Respondent denies

the remaining allegations contained in paragraph 58 of the Petition.



the Applications on September 1, 2016, that the deliberations and statements made during

that hearing speak for themselves, and that no further response is required. Except as so

expressly admitted and alleged herein, Respondent denies the remaining allegations



Respondent admits and alleges that the deliberations and statements made during the Town

Council’s September 1, 2016 continued hearing on the Applications speak for themselves,

and that no further response is required. To the extent a further response is required and

except as so expressly admitted and alleged herein, Respondent denies the remaining






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Respondent admits and alleges that any statements made by staff during the Town









except as so expressly admitted and alleged herein, Respondent denies the allegations



Respondent admits and alleges that the deliberations and statements of members of the

Town Council and staff made during the Town Council’s September 1, 2016 continued

hearing on the Applications speak for themselves and that no further response is required.

Except as so expressly admitted and alleged herein, Respondent denies the remaining



Respondent admits and alleges that the Town Council voted on September 1, 2016, to deny

the Applications and continued the hearing on the Applications to September 6, 2016, for

adoption of a resolution. Except as expressly admitted and alleged herein, Respondent

denies the remaining allegations contained in paragraph 65 of the Petition.


Respondent admits and alleges that, at its continued hearing on the Applications held on

September 6, 2016, the Town Council adopted a resolution denying the Applications and

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that said Resolution speaks for itself. Except as expressly admitted and alleged herein,



Respondent incorporates by reference its responses to paragraphs 1-66 as though set forth

in full herein.


Respondent admits and alleges that the Town’s Housing Element, including Action Item

HOU-1.7, speak for themselves and that no further response is required.


Respondent admits and alleges that the Town’s Housing Element speaks for itself and that

no further response is required.






in full herein.


Respondent admits and alleges that Government Code section 65589.5, the Housing

Accountability Act, speaks for itself and that no further response is required.


Respondent admits and alleges that the Housing Accountability Act speaks for itself and



Respondent admits and alleges that the Housing Accountability Act speaks for itself.

Except as so expressly admitted and alleged herein, Respondent denies the allegations



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Respondent admits and alleges that Government Code section 65589.6 speaks for itself.





in full herein.


Respondent admits and alleges that the State Density Bonus Law and Government Code

sections 65915 and 65917 speak for themselves and that no further response is required. To

the extent a further response is required and except as expressly admitted and alleged

herein, Respondent denies the allegations contained in paragraph 82 of the Petition.


Respondent admits and alleges that Government Code section 65915 speaks for itself.

Except as so expressly admitted and alleged herein, Respondent denies the remaining











Respondent admits and alleges that the Town received a submittal dated March 10, 2016,

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from Petitioners’ representatives regarding waivers of development standards and that said

submittal speaks for itself. Respondents further admit and allege that Government Code

section 65915 and the staff report for the Town Planning Commission’s March 30, 2016

hearing to consider the Applications all speak for themselves and that no further response is

required. Except as so expressly admitted and alleged herein, Respondent denies the













FIRST AFFIRMATIVE DEFENSE

(Failure to State a Cause of Action)

92. As and for a separate and independent affirmative defense, Respondent

alleges that the Petition, and each and every purported cause of action contained therein,

fails to state facts sufficient to constitute a cause of action against Respondent, or at all.

SECOND AFFIRMATIVE DEFENSE

(Failure to Exhaust Administrative Remedies)

93. As and for a further, separate, and independent affirmative defense,

Respondent alleges that with respect to issues that were not raised in the proceedings before

Respondent, or where Petitioners failed to comply with mandatory prerequisites prior to

initiating this action, Petitioners may not raise those issues or claims for the first time in this

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lawsuit by reason of the doctrine of exhaustion of administrative remedies.

THIRD AFFIRMATIVE DEFENSE

(Lawful Exercise of Discretion)


Respondent alleges that it properly exercised its discretion and conducted its hearings in the

manner required by law, that its decisions are adequately explained by the findings, and that

the findings are supported by substantial evidence in light of the whole record.

FOURTH AFFIRMATIVE DEFENSE

(Town Proceeded in the Manner Required By Law)


Respondent alleges that it proceeded in the manner required by law in all ways in

connection with the actions that are the subject of this lawsuit.

FIFTH AFFIRMATIVE DEFENSE

(Laches)


Respondent alleges that the Petition, and each and every purported cause of action

contained therein, is barred by laches.

SIXTH AFFIRMATIVE DEFENSE

(Waiver)



contained therein, is barred by waiver.

SEVENTH AFFIRMATIVE DEFENSE

(Estoppel)



contained therein, is barred by estoppel.

///

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EIGHTH AFFIRMATIVE DEFENSE

(Failure to Name Necessary and Indispensable Parties)



contained therein, is barred because Petitioners have failed to name necessary and

indispensable parties.

NINTH AFFIRMATIVE DEFENSE

(Ripeness)



contained therein, is unripe.

TENTH AFFIRMATIVE DEFENSE

(Any Purported Error Not Prejudicial)


Respondent alleges that any alleged and purported error was not prejudicial, and Petitioners

are therefore barred from the relief requested in the Petition.

ELEVENTH AFFIRMATIVE DEFENSE

(Attorneys’ Fees Precluded)


Respondent alleges that Petitioners are not entitled to an award of attorneys’ fees because

they cannot establish the right to such an award under any applicable legal theory.

TWELFTH AFFIRMATIVE DEFENSE

(Statute of Limitations)


Respondent allege that each and every allegation that purports to set forth a challenge to the

Town’s adopted Housing Element and/or the adopted Specific Plan is barred by the

applicable statute of limitations, including but not limited to, Government Code section

65009.

PROOF OF SERVICE

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Executed on December 9, 2016, at Los AngelE

Kellev Herrington(Type or print name)

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I, Kelley Herrington, declare:3

I am a resident of the State of California and over the age of eighteen years and not a partyto the within action. My business address is 355 South Grand Avenue, 40th Floor, Los Angeles,California 90071-3101. On December 9, 2016, I served the within documents) described as:

ANSWER TO VERIFIED PETITION FOR WRIT OF MANDATE

on the interested parties in this action as stated below:

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Arthur J. FriedmanAlexander L. MerrittSheppard, Mullin, Richter &Hampton, LLPFour Embarcadero Center, 17th FloorSan Francisco, California 94.111-4109(415) 434-9100(FAX) (415) 434-3947Email: afriedman(a~sheppardmullin.com

Robert SchultzTown AttorneyTown of Los Gatos110 East Main StreetLos Gatos California 95030(408) 354-6818rschultz(cr~,los~atosca. Gov

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Andrew FaberMichael C. BransonBerliner Cohen, LLP10 Almaden Boulevard, 11th FloorSan Jose, California 95113(408) 286-5800Email: [email protected]

❑X (BY OVERNIGHT DELIVERY) By placing the documents) listed above in a sealedenvelope and affixing apre-paid air bill, and causing the envelope to be delivered to aFedEx agent for delivery, or deposited in a FedEx box or other facility regularly maintainedby FedEx, in an envelope or package designated by the express service carrier, withdelivery fees paid or provided for, addressed to the persons) at the addresses) set forthabove.

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X~ (BY E-MAIL) By transmitting a true copy of the foregoing documents) to the e-mailaddresses set forth above.

I declare under penalty of perjury under the laws of the State of California that theforegoing is true and correct.

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