No Ruling Yet on Latest Netflix/Albright Way Development Challenge in Los Gatos

A Santa Clara County Superior Court judge took "under advisement" this morning the latest legal arguments on the controversial Albright Way office park project, the future site of Netflix's expansion in Los Gatos.

Judge Joseph H. Huber told the parties he would issue a ruling soon on the merits of a petition asking for interpretation of the 35-foot height limit provisions for buildings petitioners claim is a "rigid development standard" in the town's General Plan.

Attorneys representing the Town of Los Gatos and Los Gatos Business Park LLC., the owners of the land at Albright Way and Winchester Boulevard James Mose and Andrew B. Sabey argued briefly before Judge Huber the issue of "res judicata" meaning issues they feel have already been adjudicated by the court such as certification of the project's Environmental Impact Report.

Such certification by Judge Huber, the defendants claim, gave the Los Gatos Town Council the ability to approve the project at 485,000 square feet maximum, including four buildings, two for Netflix at 65 feet in height and two others at 50 feet and a three-story garage at 35 feet.

However, Rose M. Zoia, the attorney representing Los Gatos Citizens for Responsible Development and town residents John Shepardson and Andrew Wu, along with five other "does" challenge the EIR's certification, said, "Zoning has to be consistent with the General Plan."

"This amounts to the same claim," Sabey countered, referring to Judge Huber's August ruling against the Citizens' appeal that argued the project is inconsistent with the General Plan.

On Aug. 30, Judge Huber cleared the way for the project by ruling in favor of the Town of Los Gatos and Los Gatos Business Park.

Sabey told Judge Huber, however, that his April 2012 ruling mandating the preparation of the EIR, which has been done, considered the original building heights at 85 feet and that the issue should have been raised then.

"In the context of those CEQA [California Environmental Quality Act] proceedings, we rebutted that," Sabey said. The preparation of the EIR was sought by the Citizens' under claims the town violated CEQA by not preparing the document for such a massive project.

"If, in fact, the court was of the opinion that no building taller than 35 feet could be approved [under] the General Plan, then we had a right to know that," Sabey said.

Sabey said the developer and owners of the land have spent years and close to a million dollars in applications and entitlements to "find out on the third round that the claim is being asserted."

Judge Huber noted that the town performed the EIR, rezoned the land and the project was approved by the Los Gatos Town Council and told Sabey he was now reviewing what the government body had approved.

"We're starting from square one," Judge Huber said.

Sabey argued the latest appeal's "material facts" are identical to the previous challenge. "That's really the heart and soul of res judicata," he stressed. "You're not supposed to be subject to serial ... oh, here's a new claim ... oh, next time I come back I'll dream of something new."

Sabey asked Judge Huber to reject the claim and cited additional case law.

Mose argued planning and zoning law doesn't create rules for how towns, cities and counties set standards for building heights "that are not enshrined in gold ... they're creatures of the police power, the local governments ... there's tremendous amount of discretion."

Mose said the town chose to write the General Plan to allow flexibility looking at every development site and parcels differently based on their topography and geography. "It's within the town's discretion to do that."

Mose said the Council has interpreted a plan its government enacted by "its local police power ... the petitioner simply has not shown that this is an unreasonable interpretation ... there's just no law behind their argument."

Zoia, however, contended the town's and the developer's interpretation of the General Plan is convoluted and complicated and that zoning has to be consistent with it.

"The project remains in the light industrial land-use designation," she said. "It contains a rigid development standard," including a 35-foot height limit on buildings located in such zone.

The Citizens maintain the project is monumental and the largest in the history of Los Gatos, a town with a population of about 30,000 people.

"It's the tipping point for retaining the small-town character of the town to every developer and every commercial realtor using the 65-foot height limit," the petition further states.

Regardless of Judge Huber's ruling in the future, a group supporting the project, the Town Council and the developer is now gathering signatures to place the issue of the General Plan's language in the June ballot.

The group, under the name of We Support Los Gatos, must gather 3,000 signatures to take the issue directly to the voters to amend the town's General Plan, its land-use map, zoning code, zoning map and the so-called Albright Way Specific Plan, which would include the project.

Town residents LezLi Logan and Phillip Albanese are spearheading the signature gathering for the petition to support the project they believe will include high quality office buildings, suitable for Netflix corporate headquarters and the proper development of the intersection of Highway 85 and Winchester Boulevard.

Project developer John R. Shenk said: "Today's hearing was yet another attempt by the opponents of the Netflix expansion to derail this important project through delays caused by the courts. The only way we can bring an end to the litigation is for the voters of Los Gatos to vote up or down once and for all on the buildings we want to build for Netflix and the millions of dollars in revenue the project will bring to the town and schools."

Attending the hearing this morning was Los Gatos resident Lee Quintana, a former town planner, who successfully sued the town in September of 2011 on the basis of a CEQA violation due to the lack of an EIR for the project.

Joining Quintana were First Amendment advocate Jak Van Nada, a founding member of the Los Gatos Community Alliance, Maria Ristow, and others who believe the issue comes down to deep pockets vs. small townsfolk who want to "preserve the sanctity of their town's General Plan."


ALSO ON LOS GATOS PATCH:

• Netflix/Albright Way Development Construction Has Begun in Los Gatos
• 'Netflix Grew Up in Los Gatos And We Would Love to Stay Here'
• Scaled Back Albright Way Project OK'd Monday by Los Gatos Town Council
• Timeline: Legal Challenges to Future Albright Way/Netflix Development Project
• Updated: Petition Drive Begins to Place Future Netflix Project on June Ballot
• Is the Los Gatos General Plan Outside the Court's Jurisdiction?
• Is Los Gatos' Netflix Staying or Leaving?
• Los Gatos' Albright Way Project Continued Until June 3
• Cherry Pickers to Illustrate Height of Future Los Gatos Netflix Campus