Los Gatos Development Requires EIR, Judge Rules

Los Gatos Observer
September 13, 2008

Los Gatos Development Requires EIR, Judge Rules
Ross Creek Neighbors win against Town, developers

by Alastair Dallas

A judge has ruled that the Town of Los Gatos erred when it approved a 7-home development along Ross Creek without requiring an environmental impact report (EIR). The project’s developers, a group including Monte Sereno Mayor Erin Garner and Los Gatos realtor Terry McElroy, had spent more than two years winning approval from many agencies, but faced stiff opposition from neighbors. A series of contentious planning commission meetings in 2007 culminated in the town council’s approval of the project on Jan. 22, 2008. The “Ross Creek Neighbors,” Douglas Ownbey, and the Palo Alto-based environmental advocacy group Committee for Green Foothills filed suit on Feb. 21.

“Based on today’s ruling, the town must now review the project with a more critical eye and request changes that will reduce its impact on the environment,” said Ross Creek Neighbors spokesman David Crites. “It’s our hope that the developer will embrace the judge’s order by moving the project away from the creek and limiting the intensity.”

Brian Schmidt, Legislative Advocate for Committee for Green Foothills, believes the court’s decision has countywide significance. “CGF hopes this decision will encourage Los Gatos, and the other members of the water-resources Collaborative, to conscientiously protect area streams by applying the streamside guidelines in future land-use decisions”, said Schmidt.

In approving the project, the council ruled against the neighbor’s concerns and scientific testimony they had offered. Superior Court Judge Leslie C. Nichols wrote that, “The Town did exactly what it should not do under the fair argument standard: it weighed the opinions offered by the experts it favored against the opinions offered by [the neighbors’ experts] and decided to favor its experts, claiming it made a credibility determination.” The California Environmental Quality Act requires an EIR to settle conflicting fair arguments.

“Substantial evidence from any one qualified person in support of a fair argument that the project may have a significant impact on the environment in one or more of any number of ways (aesthetics, hydrology, etc.) is enough to require the preparation of an EIR,” Judge Nichols wrote. The town council’s rejection of the Ross Creek neighbors’ expert’s report was “unreasonable,” his ruling said.

“The only evidence…critical of [the neighbors’ expert] consists of angry communications from [the developers] complaining of NIMBYs opposing their project with ‘junk science,’ unsolicited comments from Town Attorney Korb suggesting (without foundation) that [the neighbors’] experts lacked unidentified licenses supposedly necessary to state a valid opinion and comments from town council members apparently based on their own subjective opinion regarding [the neighbors’ experts] resume and the belief that members of the public expressing passionate advocacy are somehow inherently not credible.”

“The town staff and town attorney did the absolute best they could,” said developer . “They dotted every ‘i’ and crossed every ‘t.’ 29 agencies, departments and consultants all have no problems with this development.” McElroy believes there are many grounds for appealing Judge Nichols’ ruling, particularly that the court failed to recognize that one of the town’s conditions of approval requires that all construction activity be outside the riparian buffer and 100-year flood plain. It could be argued that this makes arguments about the exact position of the buffer and flood zones unimportant.

Preparation of an EIR might take six months, but McElroy says that “90% of the work is already done.” The council’s approval of the zoning change, a Planned Development of 7 homes, is “still intact, subject to the EIR,” McElroy explains. One option, since the real estate market has evolved during the approval process, might be to redesign the development. “The market seems to be demanding smaller homes on smaller lots,” McElroy says. The project might morph into ten, 1600 square foot homes instead of seven, two-story, 3,400 square foot homes on lots ranging from 8,040 to 13,040 square feet as approved.

“In light of the court’s decision,” Town Attorney Orry Korb said, and assuming that the developers are not interested in appealing, “the town will assign an environmental consultant to prepare an EIR.”

A similar lawsuit, filed by a different group calling themselves Friends of the Hillsides, alleges that the town should have required an environmental impact report before approving a large estate on Kennedy Rd. That matter is still pending in the courts.