2040 General Plan Recirculated Draft Environmental Impact Report





January 5, 2022

VIA E-MAIL [JArmer@losgatosca.govl

Jennifer Armer, AICP

Senior Planner

Town of Los Gatos

Community Development Department

110 E. Main St.

Los Gatos, CA 95030

Re:      Town of Los Gatos 2040 General Plan Recirculated Draft Environmental

Impact Report

Dear Ms. Armer:

We appreciate this opportunity to submit comments on the 2040 General Plan Recirculated Draft Environmental Impact Report (“RDEIR”) prepared by Town of Los Gatos (the “Town”) for the 2040 General Plan (the “2040 General Plan” or the “Project”). We write on behalf of Los Gatos Community Alliance (“LGCA”).[1] LGCA has significant concerns with the adequacy of the Draft EIR (“DEIR”) as reflected in our comment letter dated September 13, 2021. While LGCA appreciates the Town recirculating portions of the EIR in response to its comments, even as supplemented by the RDEIR, the DEIR remains a fundamentally flawed document that cannot be relied on to approve the 2040 General Plan. These comments supplement our September 13, 2021 comments on the DEIR and LGCA’s December 1, 2021 comments on the DEIR and RDEIR.

As you know, the California Environmental Quality Act (“CEQA”) calls for public review and comment on environmental documents, such as the DEIR and RDEIR, to assure that the environmental impacts of proposed projects are accurately identified, fully evaluated in conformity with established plans and policies, and adequately addressed through the imposition of feasible mitigation measures and/or the adoption of feasible alternatives. In light of CEQA’s important public policies and concerns, we submit the following comments on the RDEIR.

As detailed below, the DEIR as supplemented by the RDEIR: (1) continues to fail to analyze the impacts of the “whole of the project,” as required by CEQA, (2) does not contain an accurate, stable, and consistent description of the Project, and (3) fails to adequately analyze and address the Project’s significant transportation impacts. We respectfully request that these comments and questions be addressed and that a new Draft EIR that corrects these fundamental flaws be prepared and circulated for public review and comment prior to any Town action on the Project.


  1. The DEIR as supplemented by the RDEIR, still fails to analyze the impacts of the

“whole of the project” as required by CEQA.

As detailed in our prior comment letter, the DEIR fails to analyze the impacts of the buildout potential allowed under the 2040 General Plan and thus fails to comply with CEQA. (See September 13, 2021 letter from Matthew Francois to Jennifer Armer, pp. 2-4.) Instead of the tens of thousands of additional housing units and tens of millions square feet of new commercial development allowed by the changes to the land use densities under the 2040 General Plan, the DEIR analyzes only a small fraction of this development. This undermines the DEIR’s analysis of every single environmental resource from Aesthetics to Wildlife. CEQA does not allow or authorize an agency to greatly upzone every single residential and commercial land use designation and then fail to consider the environmental impacts associated with it. There is also no reason for such upzoning given the 1,993 units needed to satisfy the Town’s Regional Housing Needs Allocation (“RHNA”), which can readily be accommodated in the mixed-use corridors designated as Opportunity Areas (“OA”).[2]

As with the DEIR, the RDEIR acknowledges that “[i]n accordance with CEQA, a program- level EIR is obligated to analyze the maximum potential buildout allowed under the subject plan or program.” (RDEIR, p. ES-4; see also RDEIR, Appendix C, Transportation Analysis, p. 2 [acknowledging that the “potential changes in land use and intensity or density would be the primary changes from the current 2020 General Plan that may result in environmental impacts.”].) The maximum potential buildout allowed under the 2040 General Plan, however, is far greater than that studied in the DEIR or RDEIR. (See September 13, 2021 letter from Matthew Francois to Jennifer Armer, Exhibit A.)

At the Town Council’s December 7, 2021 study session, Town Staff claimed that it was “standard” practice to assume only a fraction of the growth enabled by changes to a plan. In reality, such an approach is directly contrary to the law, which mandates that an EIR analyze the “whole of an action” that may result in either a direct or reasonably foreseeable indirect physical change in the environment. (See, e.g., Public Resources Code § 21065; CEQA Guidelines §§ 15146(b), 15378; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal. 3d 376 [EIR found inadequate for studying only a portion of a proposed laboratory/office development project]; Las Virgenes Homeowners Federation, Inc. v. County of Los Angeles (1986) 177 Cal.App.3d 300, 307 [in upholding the cumulative impact analysis of a project EIR that relied upon plan EIRs, the court reasoned that the plan EIRs “necessarily addressed the cumulative impacts of buildout to the maximum possible densities allowed by those plans’’’ with mitigation measures proposed and any overriding benefits of development noted]; accord, Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1228-1229 [upheld project EIR that relied on general plan EIR because plan EIR assumed “worst case” conditions for development on, and access to, the project site].)[3]

At the December 7th study session, Staff also indicated that the Town would monitor growth, and if it reached the maximum amount studied, the Town would conduct additional environmental review. Courts have routinely rejected similar claims to study environmental impacts after a project has been approved. (Laurel Heights Improvement Assn., supra, 47 Cal.3d at 394 [“If post-approval environmental review were allowed, EIR’s would likely become nothing more than post hoc rationalizations to support action already taken.”]; accord, Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 138; see also City of Santa Ana v. City of Garden Grove (1979) 100 Cal.App.3d 521, 533 [EIR should be prepared as early in the planning process as possible to enable environmental considerations to influence project, program, or design especially since general plan EIRs are used as foundation documents for specific project EIRs].)

It is also important to keep in mind that if the densities proposed by the 2040 General Plan were to be enacted, the Town would generally be prohibited from denying or reducing the density of any housing project that complied with those new density standards. (2040 General Plan, p. 10­2 [proposed plan correctly observes that the State Housing Accountability Act “prohibits the Town from lowering the density or denying a project (unless there are specific and unmitigable adverse impacts to health and safety) if the project complies with the Town’s General Plan and Zoning Ordinance (Gov. Code, Section 65589.5).”].) Further, the increased densities allowed under the Low Density Residential and Medium Density Residential land use designations would not even count towards the Town’s fair share of affordable housing. (Gov. Code § 65583.2(c)(3)(B) [requiring densities of at least 20 units per acre to be deemed appropriate to accommodate housing for lower income households].)

  1. The Project Description remains inaccurate, unstable, and inconsistent.

An accurate and complete project description is necessary for an intelligent evaluation of the potentially significant environmental impacts of an agency’s action. (Silveira v. Las Gallinas Valley Sanitary Dist. (1997) 54 Cal. App. 4th 980, 990.) “Only through an accurate view of the project may affected outsiders and public decision-makers balance the proposal’s benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal . . . and weigh other alternatives in the balance.” (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 192-193; City of Redlands v. County of San Bernardino (2002) 96 Cal. App. 4th 398, 406- 408.)

As noted in our September 13th comment letter, the DEIR project description is flawed for multiple reasons. After the comment period on the DEIR closed, an additional flaw became apparent. Tables 2-2 and 4.11-2 of the DEIR show a total of 3,738 units with no units labeled

Hillside Residential. In its September 20, 2021 report to the Town Council and Planning Commission, Town Staff provided a table showing 166 units in the Hillside Residential category for a total of 3,904 units. (Staff Report to Town Council and Planning Commission, September 20, 2021, p. 9.)

The 2040 General Plan calls for the Town to study whether hillside properties should be downzoned to lower densities. (2040 General Plan, p. 3-33.) Contrary to this provision, Staff assumes that growth will continue at current density levels. More fundamentally, the DEIR does not analyze the impacts of 3,904 units, but only the smaller (and even more grossly deflated) amount of 3,738 units.

In sum, the Project description continues to change and evolve thereby undermining the validity of the EIR’s analysis. (See, e.g., County of Inyo, supra and San Joaquin Raptor Rescue Center v. County of Merced(2007) 149 Cal.App.4th 645, 655.)

  • The RDEIR fails to adequately analyze and address Transportation impacts.

The RDEIR identifies a new significant unavoidable impact. Specifically, Impact T-1 now acknowledges a significant unavoidable impact to transit vehicle operations due to increased delays at intersections. The acknowledgment of this new significant impact requires consideration of feasible mitigation measures and alternatives to avoid or substantially lessen this impact. The RDEIR does neither.

As to Impact T-1, the RDEIR states that “[t]here are no feasible mitigation measures to reduce potentially significant effects related to transit operations and ridership” (RDEIR, p. 4.15­25.) An EIR cannot simply declare an impact significant and unavoidable without considering and imposing feasible mitigation measures. (Public Resources Code §§ 21002, 21002.1(a), 21081(a)(3); CEQA Guidelines § 15091(a)(3); California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 982; City of Marina v. Board of Trustees of the California State University (2006) 39 Cal.4th 341, 369.) The RDEIR acknowledges that transit operational improvements, such as signal coordination and transit vehicle preemption, could potentially improve the overall reliability of transit in congested areas. (RDEIR, p. 4.15-25.) Because these measures are “not likely to fully address” the impact, the RDEIR does not impose them as mitigation. (Id.) CEQA, however, requires that mitigation be imposed to reduce impacts to the extent feasible. (Public Resources Code §§ 21002, 21002.1(a), CEQA Guidelines § 15126.4.) The RDEIR does not comply with CEQA in this regard.

In addition to discussing feasible mitigation measures, an EIR must describe feasible alternatives. (Laurel Heights Improvement Assn., supra, 47 Cal.3d at 400-403 [held that an EIR must include a discussion of both mitigation measures and alternatives so that decision-makers will be provided with adequate information about the range of options available to reduce or avoid significant environmental impacts].) The RDEIR does not consider any alternatives to this newly identified significant impact. This too violates CEQA.[4]

The need to study alternatives is especially important given that the 2040 General Plan results in significant unavoidable impacts to greenhouse gas emissions, vehicle miles traveled, and transit operations. Feasible alternatives such as focused growth in the OA to meet the Town’s RHNA obligation could avoid or substantially lessen such impacts. So far, the Town has refused to embrace such a logical and environmentally superior alternative. At a recent Town Council study session, certain Councilmembers stated that they wanted to keep the 2040 General Plan as is so as to allow for additional growth options and opportunities.

Instead of decreasing VMT by at least 11.3 percent as needed to comply with the Town’s VMT threshold, the 2040 General Plan increases VMT by approximately 19 percent. (RDEIR, p. 4.15-28.) The DEIR does not quantify the reductions in VMT from the measures referenced in Mitigation Measure T-1. Without knowing the reductions from these measures, one cannot know whether additional Individual, Town-Wide, or Regional measures are needed.

The Governor’s Office of Planning & Research lists several VMT Reduction Strategies.[5] The DEIR must explain in detail why none of the State’s recommended strategies are feasible. Once again, an EIR cannot simply declare an impact significant and unavoidable without considering and imposing feasible mitigation measures. (Public Resources Code § 21081(a)(3); CEQA Guidelines § 15091(a)(3); California Native Plant Society, supra, 177 Cal.App.4th at 982; City of Marina, supra, 39 Cal.4th at 369.)

The RDEIR acknowledges that Plan Bay Area 2050 was adopted in October 2021. (RDEIR, p. 4.15-17, fn. 2.) Yet, the analysis still relies on Plan Bay Area 2040 forecasts. (RDEIR, pp. 4.15­29 to 4.15-30.)

The RDEIR contains some typographical errors. On page 4.15-5, the second sentence of the third paragraph appears to be incomplete. Note 2 on page 4.15-12 appears to be missing the word “of’ before “this section of the EIR varies . . ..” The reference note on page 4.15-29 should be to Table 4.15-4. In the next to last sentence of the last paragraph on that page, the word “different” should be “difference.” On page 4.15-37, the word “to” appears to be missing after “transit delays due,” and on page 4.15-38, the word “with” appears to be missing after “would not conflict . . ..”

  1. Conclusion

While it is plain that an EIR is needed in connection with the proposed Project, it is also clear that the DEIR, even as supplemented by the RDEIR, is flawed and cannot be relied on to approve the 2040 General Plan. The documents fail to adequately analyze the “whole of the project,” thereby thwarting effective public review and comment on the environmental impacts of the 2040 General Plan. The project description keeps evolving, underscoring its inaccurate, inconsistent, and unstable nature. The RDEIR fails to thoroughly and adequately identify the Project’s significant transportation impacts and fails to propose feasible mitigation measures and alternatives to avoid or substantially lessen such impacts.

Thank you for your consideration of LGCA’s comments on the RDEIR. Please do not hesitate to contact the undersigned with any questions concerning this correspondence.

Very truly yours,


Matthew D. Francois

cc (via e-mail):

Honorable Rob Rennie, Mayor, and Members of the Town Council

Laurel Prevetti, Town Manager

Joel Paulson, Community Development Director

Robert Schultz, Town Attorney

[1]     Members and/or supporters of LGCA include: Joanne Benjamin, Sandy Decker, Tom Ferrito, Peter Hertan, Phil Koen, Don Livinghouse, Sandra Livinghouse, Lee Fagot, Ann Ravel, Steve Rice, Barbara Spector, Rob Stump, Rick Van Hoesen, Jak Vannada, and Colleen Wilcox.

Rutan & Tucker, LLP | 455 Market Street, Suite 1870

San Francisco, CA 941 05 | 650-263-7900 | Fax 650-263-7901

Orange County | Palo Alto | San Francisco | www.rutan.com

[2]     Such upzoning is also unnecessary in light of Senate Bill 9, which takes effect on January 1, 2022, and allows ministerial approvals for up to four housing units per residential lot.

[3]     Unless otherwise noted, emphasis in quotations herein is supplied and citations are omitted.

[4]     In the Executive Summary, the RDEIR states that the alternatives examined for other significant impacts focused on seven OA in the Planning Area. (RDEIR, pp. ES-3 to ES-4.) As noted in our comments on the DEIR, the substance of that comment is not accurate. Moreover, there are eight OA, not seven.

[5]     (http://www.opr.ca.gov/ceqa/updates/sb-743/)

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