Developer: New Lawsuit Against Los Gatos Albright Way Project 'Irresponsible'

John R. Shenk says latest legal challenge makes same arguments already rejected by court; asks plaintiffs to 'drop their lawsuit before irreversible harm is done.'

John R. Shenk is the developer of the Albright Way/Winchester Boulevard Class-A Office Park project. Photo by Sheila Sanchez
John R. Shenk is the developer of the Albright Way/Winchester Boulevard Class-A Office Park project. Photo by Sheila Sanchez

The developer of the future Netflix campus in Los Gatos called the latest lawsuit against the project and those behind it "irresponsible" in a response sent to Los Gatos Patch Wednesday afternoon.

John R. Shenk, who represents the land owners, Los Gatos Business Park, LLC., said the most recent civil complaint against the project, at the corner of Albright Way and Winchester Boulevard, makes the same argument that the Santa Clara County Superior Court did not accept in mid August.

Judge Joseph H. Huber threw out the previous appeal, filed by the same group—Los Gatos Citizens for Responsible Development—saying there were no merits to its arguments that it violated the town's General Plan standard of 35-foot height limit for buildings.

The Los Gatos Town Council on June 3 scaled back the project by a 4-1 vote from 550,000 square feet to 485,000. It also lowered the height of two of its four buildings from four stories, or 65 feet, to three stories, or 50 feet. One of the lowered buildings was the one closest to Highway 85 and the current Netflix campus at 100 Winchester Circle. The other two edifices remain at 65 feet.

The company has signed leases for two of the four buildings and Shenk said demolition of sevent of the 10 current buildings on the 21-acre site would take place last week. He anticipated completion of the project by Q1 of 2015.

The project's originally proposed three-story parking garage will also be capped at 35 feet, with the option of going underground, the Council voted.

Shenk said it was unfortunate that the Los Gatos Community Alliance and The Citizens and the two recent plaintiffs named in the most recent complaint—John Shepardson and Andrew H. Wu—are using the legal system to advance their own personal agendas without regard to what the majority of the citizens want for Los Gatos.  

"We would call on [them] as well as their supporters ... and others to put aside their personal agendas and drop their lawsuit before irreversible harm is done," Shenk said.

The latest petition was filed with the court Aug. 30 and challenges the project under California planning and zoning laws.

Santa Rosa-based attorney Rose Zoia, who represents The Citizens, writes in the petition that as part of the project latest approvals in June of this year, the town adopted a zoning ordinance inconsistent with the Los Gatos General Plan.

Zoia says the plan mandates a 35-foot-height limit on buildings located in the light industrial zone.

"A zoning ordinance inconsistent with the general plan at the time of its enactment is 'invalid when passed,' " according to the complaint, which cites case law Sierra Club v. Board of Supervisors.

The suit's goal is to have town government officials set aside the project's most recent approvals, including the zoning ordinance, the petition states.

On April 23, 2013, Judge Joseph Huber ruled that the town's first approval of the project in 2012 violated the California Environmental Quality Act.

The Los Gatos Town Council in September of 2012 rescinded its project approvals due to Judge Huber's ruling and Shenk, on behalf of Los Gatos Business Park, LLC., began a new application.

This past June, the town rescinded several ordinances and amended the zoning ordinance for the project allowing a new so-called "planned development" overlay zone that allowed for the project's building heights to exceed the 35-foot cap.

"If the project remains approved, construction may proceed with immediate, severe and irreparable harm to the environment and to petitioners, the town, the county and the state of California residents," the petition states.

Netflix spokesman Joris Evers declined comment Wednesday on the latest legal challenge.

"The Albright Way approvals are 100 percent compliant with the Town of Los Gatos’ General Plan and zoning. The town staff and the elected officials all thoroughly and thoughtfully analyzed this during the process and in the public hearings and concluded that the zoning is compliant," Shenk said.

Los Gatos Town Manager Greg Larson wasn't immediately available for comment.


MichaelJ September 05, 2013 at 10:48 AM
Netflix has plenty of options on sites in this valley. Los Gatos is about to see this multi-million dollar company opt for another location. Can't say that I would blame them.
AR September 05, 2013 at 12:10 PM
the petitioners have sealed their own fate with ridiculous claims. irreparable harm to the state of california? wait wait, there's still time to amend the declaration to include tierra del feugo and saturn. this petition can be summed up as follows: the town made a decision someone didn't like. at least the earlier suits had a specific merit - the issue of the EIR.
James George September 05, 2013 at 12:30 PM
As I understand it, the general plan is law once adopted. The reason for a general plan that takes thousand of hours of work is to provide city officials as well as citizens consistent guidelines. These same city officials passed the adoption of the general plan. The planned a development overlay zone has caused plenty of other problems in our city with the overcrowding of housing developments such as the new ones on Los Gatos Blvd.
Baraiha September 05, 2013 at 12:35 PM
Well, I live in San Jose and would love to see the jobs, tax base, and extra business revenue be shifted there. Keep it up "Citizens of Los Gatos". Your doing San Jose's work for them. *sarcasm*
Eric C September 05, 2013 at 12:36 PM
what I DO NOT understand is WHY a developer would present a plan that is in CLEAR violation of the GENERAL PLAN.....unless they knew that the LG Council would CAVE to their demands...... perhaps if the council had simply followed the general plan, that THEY, or their predecessors adopted, we wouldn't have this problem. instead they let the developer push them around, because, obviously the LLC doesn't want to compromise. when I remodel my house I don't get to change the rules to suit myself, why does Los Gatos Business Park LLC?
Mckenna Smith September 05, 2013 at 12:50 PM
The CITIZENS are just a bunch of stubborn old rich people who need to STOP THIS NONSENSE N!!!!!
AR September 05, 2013 at 01:02 PM
the general plan does not strictly limit commercial building height to 35 feet. the plan clearly states that the town council may choose to approve projects otherwise. so even if one holds that the general plan is in fact legislation, you must address the escape hatch the authors of the document provided.
MichaelJ September 05, 2013 at 01:49 PM
I am glad to see people stand up to developers who for the longest time have found ways around laws and ordinances. This time they are running into opposition and they are realizing it is an uphill battle. Sorry to hear this is an inconvenience to the developers!! In the end they will get their way and the citizens will go back to their daily duties and the company will continue to make their millions.
AR September 05, 2013 at 02:48 PM
MichaelJ - there were public meetings and a vote held by your elected town council. i'm not sure why residents are chiming in with some supposition that this deal still requires their assent, or that it is even still a topic of discussion. that someone files a frivolous lawsuit does not on its own reverse the concluded process you all had an opportunity to participate in.
Marilyn Leonard September 05, 2013 at 07:31 PM
C'mon people! This has already been reviewed and rejected. Stop wasting everyone's time and money and move on.
Chris September 05, 2013 at 07:55 PM
Thank you “Citizens” for fighting to protect the (small) Town of Los Gatos! Height limits exist in the General Plan to protect residents from exploitation by the Town Council and Planning Department. Anybody who doesn’t support current height limits should ask the Town Council to change the General Plan so that gigantic projects like this can be built all around town, instead of isolated to a single neighborhood. A Planned Development overlay is not applicable for a new office building replacing an old office building, and does not override the General Plan, and therefore should be found unlawful. This mess is all about Shenk’s profit margins. Netflix has long-term plans to lease only 2 of the 4 new buildings, and could easily achieve their long-term square footage requirements with 35’ tall buildings. Let’s not forget that back in 2011, just 1 month after the Albright project was originally approved at the much larger size and 85 foot building height, Netflix announced plans to abandon Los Gatos and move to San Jose, but was forced to cancel their plans after stockholder outcry.
Eric C September 05, 2013 at 08:33 PM
the reality of this is that the planning commission didn't sign off on it, they sent it back a couple of times until the process was done and it was automatically then sent to council for their vote. the developer played the game, just ignored the law and the ordinances. knowing full well that the council would cave to what they wanted...
Jim Gough September 06, 2013 at 03:28 AM
@Eric C: When your house generates 1/2 of the sales tax revenue the city takes in, you might get to change the rules to suit yourself. @Chris: The stockholder outcry had nothing to do with Los Gatos, it had to do with a very stupid, ham-handed move on the part of Netflix management to separate DVD distribution from streaming by creating a new entity to handle the DVD distribution. Characterizing this as being related to moving the DVD distribution portion of the business to San Jose from Los Gatos is mis-informed if not dishonest. This thing is done, stop trying to make it un-happen, it's not going to un-happen.
Jennifer September 06, 2013 at 01:02 PM
California case law supports the stand that the GP is the governing document for the Town. For the comment above that this lawsuit is just a bunch of 'stubborn old rich people' - please know it includes the families and communities that are in the shadow of this project - most of which live modestly in this lovely town of Los Gatos. If the Town is going to make such exceptions that impact the lives of these people the only thing being asked is that the GP be amended to allow ALL residents of Los Gatos, rich, poor and in between, to be granted the same benefit of construction outside of the limits of the GP in their backyards.
Eric C September 06, 2013 at 01:09 PM
if companies or people have more rights based on the taxes that they pay, then we are indeed in a sad state of affairs, that is just WRONG.... that whole concept sounds like it was heard (and believed) on Faux News
Chris September 06, 2013 at 01:20 PM
@Jim Gough – There were 2 points to the statement about Netflix, and you missed them both. First is that Los Gatos residents feel loyalty towards Netflix, but Netflix doesn’t return the favor. Netflix management has a fiduciary responsibility to shareholders, end of story. Second is that Netflix decided to move operations out of Los Gatos immediately after the Albright project was first approved on a much larger scale at 85’ tall. Again, Netflix management will do what is best for their company, and their decisions are unrelated to the size of the Albright project or the sacrifices that Los Gatos makes to our Town character. Some people might not think this is a sacrifice to the character of Los Gatos, but the poor residents who will live at the foot of those towers certainly do. Same with residents of nearby neighborhoods who cannot travel to/from their houses without getting caught up in Lark traffic and stoplights every 0.1 mile. The Town Council and Town staff made a decision to sacrifice quality-of-life for residents of north Los Gatos in exchange for town revenue so that employees like Town Manager Greg Larson can continue to receive over a quarter-million dollar annual compensation package.
Irene Aida Garza-Ortiz September 06, 2013 at 01:28 PM
Chris September 06, 2013 at 01:47 PM
^ ... says the person who won't have a new office building staring directly into the back windows of their residence.
Robbie T September 07, 2013 at 02:16 AM
I, for one, am glad our economic future is being dictated by retirees and their sense of nostalgia, and their idea that somehow Los Gatos isn't part of the greater "silicon valley".
Jim Gough September 10, 2013 at 02:25 AM
@Chris ^...says the person who currently does have an old office building just a little bit shorter staring directly into the back windows of their residence. @Eric C. I'm not a Faux news guy myself (actually if some of my friends heard you say that they would laugh, I'm pretty damn progressive) But I realize the reality that the Town of Los Gatos is in a very competitive marketplace and if we were to lose Netflix it would be devastating to our tax revenue. I agree with you about Netflix's primary objective, I have no loyalty or love for them. Frankly I think their current leadership is middling at best, but the company IS an asset to Los Gatos and I'd like it to continue to be so. Frankly, the exemptions they are requesting aren't that terrible, and I drive by the place every day.


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