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

Santa Clara County Superior Court Judge Joseph H. Huber takes latest arguments in favor and against large office park development in Los Gatos 'under advisement.'

From left, Los Gatos resident Andrew H. Wu, Los Gatos Citizens for Responsible Development Attorney Rose Zoia and Los Gatos resident Maria Ristow outside Dept. 21 at the old Santa Clara County Courthouse in SJ Friday. Photo/Sheila Sanchez
From left, Los Gatos resident Andrew H. Wu, Los Gatos Citizens for Responsible Development Attorney Rose Zoia and Los Gatos resident Maria Ristow outside Dept. 21 at the old Santa Clara County Courthouse in SJ Friday. Photo/Sheila Sanchez
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."


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Irene Aida Garza-Ortiz December 07, 2013 at 01:27 AM
Really tired of this subject. Just hope The Best 4 this Community.
John December 07, 2013 at 04:33 AM
Big money trying to break rules. The Developer failed to get an EiR. The Court ordered one. Now, the Developer failed to comply with the GP height standard, and we are standing up for our GP standards, which the Developer naturally finds dustasteful. Apparently anticipating another court loss, they are seeking a ballot initiative. They want development on their terms, not, i suggest,for what is best for the environment or the Town. The EIR they were ordered to produce, and which they paid for, stated the environmentally superior alternative (excepting no development at all) was 350,00 square feet of commercial office space. We are for this. This keeps Netflix which only needs 242,500 feet. So for the developer to assert we are against development is simply untrue. 350,000 with underground parking and 35-foot tall buildings, is the elegant solution. We respect the GP, we keep Netflix, we reduce traffic, we bring in 630 to 900k in money to the schools, we keep views, the views and privacy for Charter Oaks residents is maintained, which are things important to Lezle' Logan, so join us Lellzle. Please empathize with Charter Oaks resudents. Please give as much weight to their piracy and views that you have expressed for your own Loma Alra home. If you are being paid by the Developer to promote their position, I can understand the pressure you are under. It seems to me if you are or have been compensated by the Developer, I think the citizens of Los Gatos have a right to know. Mr. Albanese. signed the Petition notice, and his company is getting the demo work. LesLe you signed too, so are you receiving compensation too? The signature gathers are being paid by the Developer. The mass mailer was paid by the Developer. The Developer is using big money to influence and direct our land use standards. The Developer is driven by big profits, and is placing profits over what is best for the environment.
Larry Arzie December 07, 2013 at 01:04 PM
We are a nation of laws. We either follow them or allow them to be circumvented. Thank you to the folks who are challenging those that want to interpret them to their benefit. This is why we have courts. The developer is hedging his bet incase he looses by collecting signature for his initiative to do an end run.
Vikki December 07, 2013 at 11:25 PM
Los Gatons should get free DVD rentals with popcorn included.
John December 08, 2013 at 04:07 AM
We can watch "House of Cars"...when sitting between lights on Winchester, Lark and LG Blvd...and soon to our town if the Big Money Developers have their way, a new permanent feature, "The Los Gatos Traffic Triangle".
Marilyn Leonard December 08, 2013 at 05:12 PM
I still think this expansion will be a plus for Los Gatos - more jobs locally and more taxes.
AR December 08, 2013 at 07:25 PM
i have a serious question for the repeat commenters on these stories...why do you continue to discuss the foundational issues of this development? the plaintiffs are asking for a clarification of the concreteness of the town plan. more specifically, they also appear to be asking that the judge reverse his previous ruling based on a (supposed) new measure of this concreteness. cancelling this development doesn't even appear to be on the table...and it appears that many of you are still hung up on the fact that this development is happening at all, hence the debate focusing on foundational issues like traffic and neighborhood impact. why? it would appear that the best outcome the Citizens could hope for at this point is that the Town Plan be binding as a Town Constitution and the netflix development be required to conform to it. even if the entire proposal process was ordered to be done-over (highly unlikely), you still have the same sitting council as the one that approved the initial development, so you would expect the votes to be the same. so why are people still trying to vent based on foundational issues?
John December 08, 2013 at 08:40 PM
AR and ML: Thank you for your posts. I agree with ML an expansion would be good for Los Gatos, more jobs (for mostly outsiders), and more tax monies for schools. Where we disagree is the SCOPE of the expansion. I happen to believe in doing what is best for the environment and having the expansion. What is best for the environment is the EIR recommended 350K square feet of office space. ML appears to think the additional 135K that the Developers want to increase their profit margins is more important than the loss of the environmentally superior alternative of 350K. This is a values choice for the people of Los Gatos. Netflix is a nonissue. They only need 242,500, which is easily covered by the 350K. So do we want what is best for the environment, keep Netflix and bring in $630Kk to $900K in school revenue or do we want to go with an environmentally INFERIOR option to gain an additional $100/student/year? Environment & Expansion or environmental damage and Bigger Developer Profits, where are your values? Isn't the environment a moral issue in light of the systemic damage we are doing to the planet? 2. AR: To answer your question, the GP placed a maximum height limit of 35-feet. If the rule was followed, the foundational items you mention change also, less height, square footage, impacts on traffic, privacy and views. Thus, we see the GP are inextricably intertwined with the foundational items, and hence, helps explain why the GP standards are so important, and when mandatory standards violated, so grave a matter, particularly on the biggest commercial development in the history of Los Gatos.
Larry Arzie December 08, 2013 at 09:53 PM
AR, this is not the "Netflix Development" this is the developers project not Netflix's. Netflix is being used by the developer for his personal financial gain. The fact that Netflix is allowing this does not speak well of them.
Nora Rousso December 19, 2013 at 10:43 PM
There is no doubt that this project would not fly if it was in the LG downtown. How many of the people who signed the petition actually live in this part of town? How many have been stuck in traffic on Winchester and/or Lark? No one says that the area can't be developed, but this town has a sad history of overlooking the rules for the sake of permitting a select few to make obscene profits. What good is a general plan if you can just ignore it when it doesn't suit your money making goal?

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