Is the Los Gatos General Plan Outside the Court's Jurisdiction?

In the latest legal challenge against the Albright Way project—the future home of Netflix—attorneys representing the town and the developer argued that the General Plan issue was outside of the court's jurisdiction.

It was also argued that the General Plan's alleged inconsistency issue was barred from the court's consideration because the Los Gatos Citizens for Responsible Development had made that argument in the first lawsuit filed in September of 2011 and could not make it again, a legal claim preclusion called res judicata.

However, Citizens' attorney Rose Zoia says the General Plan inconsistency argument related to the project was not made in the first lawsuit and the court needs to rule on it.

Their latest appeal to the project, filed Aug. 14, 2013, was discharged, but Zoia said Santa Clara County Superior Court Judge Joseph H. Huber did not state why.

"In our view, the latest approval is illegal," Citizens' member John Shepardson told Los Gatos Patch.

The basis for the Citizens' argument is that they believe the General Plan's light industrial zone for the project area calls for 35-foot-height-maximum buildings and is "subject to rigid development standards."

Shepardson said this is important for the public to know because he says it's the only land-use designation in the town that has that additional language.

"In our view ... and in the eyes of the law ... that language of 35-foot maximum-height-limit subject to rigid development standards ... was clear, fundamental and mandatory," Shepardson said.

Language in the General Plan that's "clear, fundamental and mandatory," means the Los Gatos Town Council must follow it, he added.

"There's no discretion," he stressed. "In our view, the developer insisted on 65 feet, what was approved was two buildings at 65 feet and two at 50 feet and they modified the zoning, but the zoning under the law must be consistent with the General Plan."

He continued: "In our view, the Council did not have the discretion to not follow that 35-foot height required in the General Plan and as a result the developer's proposal and the town's approval of it were unlawful."

Judge Huber, however, discharged the lawsuit, but didn't articulate his reason for doing so, Shepardson said.

A separate issue on whether the court had jurisdiction to hear the Citizens' latest challenge that the General Plan was not followed has now created another legal question.

It made the Citizens file a second lawsuit, "out of prudence," Shepardson said.

The Citizens' appeal in the first latest lawsuit also contains a motion for stay, meaning they are requesting that the 6th District Court of Appeal halt the project.

Three Justices will hear this part of the case, Shepardson said, explaining the magistrates serve on a higher court that will make the determination.

The next hearing on the second part of the latest legal challenges is set for Friday, Dec. 6 at the Old Santa Clara County Courthouse, in Department 21, 161 No. First St., in San Jose.

Sign up for the free Los Gatos Patch newsletter | Like Los Gatos Patch on Facebook | Follow @GatosPatch on Twitter | Blog on Los Gatos Patch | Follow Los Gatos Patch on Instagram