Developer for Los Gatos project warns of legal costs

The developer of a proposed 13-story apartment building in Los Gatos warned the Town Council last week of potential legal costs for blocking the project, even though the council says the developer’s application is moving forward.

“I respectfully want to tell you the town’s multiple lawsuits (related to housing construction), including attempting to block this development, will cost the town dearly in terms of the money that it not only has to pay its own attorneys, but also the prevailing developers and the state in penalties,” Ben Eilenberg, developer of the 119-apartment Vista Capri project near the intersection of Winchester Boulevard and Highway 85, said at the meeting.

Eilenberg is advancing Vista Capri under a state law known as builder’s remedy, which allows developers to ignore restrictions on building height and density when local governments lack state approval for their housing plans. He is also working on other builder’s remedy projects in the state, including in Santa Barbara and Carpinteria.

Speaking remotely at the Dec. 16 council meeting, Eilenberg emphasized his position.

“I’m not going to exaggerate to you. We recently cashed the attorney’s fees check from another city and are in final negotiations on the amount of attorneys’ fees that a third city will be paying us,” he said. “This was after they were both advised to settle by their attorneys because there was no path to victory for them and they needed to stop the bleeding.”

The council nonetheless unanimously approved a resolution refuting Eilenberg’s claims that Los Gatos planners are placing obstacles in Vista Capri’s path.

“As I look at this, we are processing this application,” Vice Mayor Maria Ristow said. “I’m not seeing any evidence that we’re blocking it. Just as we have to comply with the (California Housing Accountability Act), so does the applicant. And we have objective standards that require an arborist report, that require an architect report. I mean these are all items that every application that comes to us has to go through.”

Los Gatos Town Attorney Gabrielle Whelan, responding to a question from councilmembers, said the town has received 16 builder’s remedy projects and approved three of them, with the remaining 13 still being processed. The only lawsuit filed against the town by a builder’s remedy developer is from Eilenberg.

Eilenberg purchased the wedge-shaped half acre site at 14288 Capri Drive, which backs onto Winchester Boulevard, for $1.7 million in late 2023. An existing house on the property is rented by the owner of California Home & Garden in Campbell, with garden sculptures displayed in the adjoining yard.

Los Gatos LLC, a company formed by Eilenberg based at a mailbox rental store in the Southern California city of Fullerton, first filed an application for Vista Capri with Los Gatos planners in August 2024. Public records show more than 50 other LLCs associated with Eilenberg listed at the same address.

Eilenberg was an attorney in California who at present is suspended from practice following a number of disciplinary actions by the state bar association from 2017 through 2024.

Eilenberg declined to comment on Vista Capri or his other projects due to pending litigation.

In July, Los Gatos LLC sued the town, charging planners with disregarding state law by refusing to approve Vista Capri.

In the same month, Eilenberg purchased a 355-acre parcel for $5.5 million along Higuera Highland Lane in the unincorporated Mount Pleasant neighborhood of Santa Clara County, near Evergreen in San Jose.

In September, Los Gatos declared the Vista Capri application complete, meaning the developer had submitted all information required for the town to finish processing the request. But the town also required additional steps by Los Gatos LLC that the developer claimed in a separate action aren’t allowed under the builder’s remedy — claims the town council rejected in last week’s vote.

Both sides have to wait for court rulings to resolve their disputes, even as they continue moving forward on paperwork.
Kelly Snider, a land use consultant and professor in San Jose State University’s Department of Urban and Regional Planning, said the Vista Capri fight is an outcome of California’s tight housing market.

“But that’s not an abuse of the builder’s remedy, that’s the system working as intended,” Snider told San José Spotlight. “Every city should at least be meeting housing developers somewhere in the middle … Until that happens on a wide scale, then shocking proposals like this will continue to proliferate, which both stokes animosity and fear of the new homes and also literally costs taxpayers dollars in legal settlement fees.”

Editor’s note: The developer’s name, Ben Eilenberg, was incorrectly spelled as Eisenberg.

Contact Mike Langberg at [email protected].