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HomeMy WebLinkAbout09 14 2026 Item 10.3 - Georgine Scott-CodigaCAUTION: This email originated from an External Source. Please use proper judgment and caution when opening attachments, clicking links, or responding to this email. From:Americans For Non-Profit Transparency To:Public Comments; Mayor Greg Bozzo; Council Member Dion Bracco; Council Member Tom Cline; Council Member Terence Fugazzi; Council Member Zachary Hilton; Council Member Carol Marques; Council Member Kelly Ramirez Cc:Andy Faber; Kim Mancera Subject:EXTERNAL - Written Public Comment — Item 10.3 — Urgency Interim Ordinance Imposing a Temporary Moratorium on Data Center Applications Date:Monday, September 14, 2026 8:38:41 AM AMERICANS FOR TRANSPARENCY Georgine Scott-Codiga, Founder | AFNPT@proton.me First Amendment Press Protections Apply September 14, 2026 Mayor Greg Bozzo and Members of the Gilroy City Council Dion Bracco | Tom Cline | Terence Fugazzi | Zach Hilton | Carol Marques | Kelly Ramirez 7351 Rosanna Street, Gilroy, CA 95020 CC: Andy Faber, City Attorney — andy.faber@berliner.com Submitted via: publiccomment@cityofgilroy.org Re: Written Public Comment — Item 10.3 — Urgency Interim Ordinance Imposing a Temporary Moratorium on Data Center Applications Dear Mayor Bozzo and Members of the City Council: Americans for Transparency (AFT) submits this written public comment on Item 10.3 — the proposed Urgency Interim Ordinance imposing a 45-day moratorium on data center applications citywide. AFT supports the concept of a moratorium. However, the public record raises serious questions about the timing, the basis, and the completeness of tonight’s action that the Council and public are entitled to have answered before a vote is taken. I. The City Attorney Said There Was No Urgency — Three Times AFT Asked, Three Times the City Refused. What Changed? AFT has formally requested that this Council adopt an interim urgency ordinance under Government Code Section 65858 — the identical mechanism proposed tonight — on three separate occasions: • June 5, 2026 — Formal Citywide Zoning Proposal submitted to the full City Council, including a draft urgency moratorium and model ordinance language; • June 13, 2026 — Written request to the full City Council for introduction and adoption of an interim urgency ordinance at the June 15, 2026 meeting, with a draft ordinance attached for the City Attorney’s consideration; • July 7, 2026 — Renewed request for an urgency moratorium submitted to the City Council. Each of these requests is part of the public record. At the June 15, 2026 meeting, City Attorney Andrew Faber stated from the dais: "I don’t think there is any urgency right now." The Council took no action on an urgency ordinance on June 15, or on any of the three dates AFT formally requested one. Tonight’s agenda was amended on the Friday before this meeting to add Item 10.3. No staff report was included in the agenda packet as originally posted. The staff report was added at an undisclosed time before tonight’s meeting without public notice of the addition. The Council is being asked to make findings that adoption of this ordinance is necessary for the “immediate preservation of the public health, safety, and welfare” — without any public explanation of what new facts support those findings that did not exist on June 5, June 13, or July 7, when AFT formally requested this exact action. AFT is not aware of any publicly stated reason for this reversal. The public is entitled to one. Why now — and not on June 5, June 13, or July 7? II. The Council and the Public Were Not Told a Pre-Application Had Already Been Received On June 24, 2026 — nine days after the June 15 meeting — Community Development Director Sharon Goei responded in writing to AFT’s request for confirmation of application activity on APN 841-18-082. Director Goei’s written response states: "For your information, a Development Review Group pre-application was received for APN 841-18-082. This is not an entitlement application." That pre-application was received by the City weeks before the June 15, 2026 meeting. Neither the Council nor the public was informed of it at that meeting. When asked about new applications at the June 15 meeting, the Planning Manager clarified that there were no "formal" entitlement applications — a technically narrow answer that created the deliberate impression that no application activity existed on this parcel. That impression was false. A pre-application had been received. The Council voted on Item 9.4 and the City Attorney declared no urgency existed — without disclosing to either the Council or the public that a pre-application for a new data center facility was already in the City’s possession. Tonight’s ordinance proposes a moratorium on "new" applications. AFT demands that the City disclose, on the record tonight, exactly how many data center applications — whether pre- applications, Development Review Group submissions, or formal entitlement applications — the City has received to date, and confirm directly whether the existing pre-application on APN 841-18-082 is subject to, exempt from, or grandfathered under this moratorium. III. What AFT Believes Is Actually Driving Tonight’s Action On August 25, 2026, AFT served a formal demand letter on the City Council and City Attorney pursuant to Government Code Section 66499.36, demanding that the City initiate Notice of Violation proceedings against Amazon Data Services, Inc. based on a documented title defect in the Amazon Data Center parcel (APN 841-69-044). On August 26, 2026, AFT transmitted formal notice of that title defect to the Board of Directors of the Santa Clara Valley Water District. The public record of this investigation has generated significant independent press coverage that the Council should acknowledge: • San Jose Spotlight, “Amazon data center project in Gilroy upsets locals” (September 9, 2026); • Gilroy Dispatch, “City of Gilroy refutes accusation of Map Act violation at data center site” (September 10, 2026); and • San Jose Inside, “Gilroy Refutes Charges that Parcels at Amazon Data Center Site Were Illegally Drawn” (September 11, 2026). The volume of independent press coverage — three outlets in three days — demonstrates that this matter warrants a formal, in-depth investigation or independent audit, not a one-page letter from a surveyor retained and paid for by the City. Tonight’s agenda includes a closed session on “anticipated litigation — one case” under Government Code Section 54956.9(d)(2). Tonight’s amended agenda was posted the Friday before this meeting — after AFT’s demands had been served, after Valley Water had been formally noticed, and after this matter had received sustained independent press attention. AFT believes the timing of tonight’s urgency ordinance — adopted the same evening the City enters closed session on anticipated litigation — reflects an effort to demonstrate responsive action in the face of legal and public pressure, rather than a response to any newly arisen threat to public health, safety, or welfare. The Council is asked to make urgency findings tonight. Those findings deserve an honest public record. IV. The City’s Own Staff Report — Added After the Agenda Was Posted — Confirms What Was Concealed on June 15 The staff report for Item 10.3 was not included in the agenda packet posted on Friday, September 11, 2026. It was added at an undisclosed time before tonight’s meeting — without public notice of the addition and without explanation of when or why it was withheld from the original posting. This conduct raises serious questions under Government Code Section 54954.2(a), which requires that agenda materials be made available to the public at the time the agenda is posted. The failure to include the staff report in the original posting is a potential Brown Act violation that AFT formally places on the record tonight. The substance of the belatedly posted staff report is equally troubling. The City’s own staff report now confirms, in writing, what was never disclosed to the Council or the public on June 15, 2026. Three facts stand out: First — The Pre-Application Is Confirmed. The staff report states: “The City has since received a pre-application from AWS for a second Data Center facility (the ‘Proposed AWS Project’), anticipated to be located at or near the intersection of Highway 152 and Camino Arroyo.” This pre-application was in the City’s possession on June 15. Neither the Council nor the public was told. Second — The Pre-Application Is the Urgency Justification. The staff report states that immediate action is necessary because “absent a moratorium, the City could be required to accept, process, and approve an application for a future Proposed AWS Project.” The City is now saying in writing that the urgency for tonight’s ordinance is the very pre- application it concealed from the Council and the public on June 15 — the same evening City Attorney Faber told this Council there was no urgency. That statement was false. The City’s own staff report proves it. Third — The Moratorium Exempts the Project Whose Legal Validity Is in Dispute. The staff report confirms that the moratorium “does not impact the AWS Facility currently under construction, which is approved in its entirety under AS 20-23.” AFT’s documented title defect in that approval — the subject of AFT’s August 25, 2026 demand under Government Code Section 66499.36 and tonight’s closed session on anticipated litigation — is therefore entirely unaddressed by tonight’s ordinance. The moratorium does not cure the underlying legal problem. It papers over it. The combination of a belatedly posted staff report, a concealed pre-application, a contradicted urgency finding, and a moratorium scoped to exempt the very project whose legal validity is in dispute constitutes a pattern of conduct that this Council must address directly and on the record tonight. V. The Question the City Has Not Answered On September 11, 2026, the City posted a communication on its website and public platforms stating that a licensed land surveyor had reviewed Certificate of Compliance No. 2020-05 — the Lot Line Adjustment instrument through which the Amazon data center parcel (APN 841-69-044) was created — and found no violation of the Subdivision Map Act. The City characterized this review as “independent.” It was not. The review was paid for and directed by the City of Gilroy — the same party whose City Engineer signed the instrument now in question, and the same party that has direct legal exposure if the instrument is found to be defective. A review commissioned and paid for by the party under scrutiny is not an independent review. The City’s surveyor concluded that the recorded documents were properly prepared. That is not the question anyone asked. The question is this: City Engineer Gary Heap’s Certificate of Compliance No. 2020-05 (Doc #24532203, Santa Clara County Recorder) certifies that “no new parcels” were created by the instrument. The surveyor’s own Exhibit A, incorporated into that same recorded instrument, labels all three output lots “LOT A/B/C (New).” Amazon’s own Grant Deed (Doc #24575862), recorded 35 days later, uses the word “CREATED” in its legal description: “BEING LOT C AS CREATED IN THAT CERTAIN DOCUMENT ENTITLED ‘CITY OF GILROY CERTIFICATE OF COMPLIANCE NO. 2020-05 (LOT LINE ADJUSTMENT).’” To create means to bring into existence something that did not previously exist. That is what the City’s own recorded instruments say happened. California’s Subdivision Map Act — Government Code Section 66412(d) — provides that a Lot Line Adjustment shall not be used to create new parcels. The City’s surveyor — paid by the City — confirmed the documents are properly prepared but did not answer the question of whether it is legal to create a new parcel through a Lot Line Adjustment. Until the City answers that question — directly and on the record — the recorded instruments stand as documented evidence of a violation of California’s Subdivision Map Act. VI. Reservation of Rights Americans for Transparency reserves all rights under Government Code Sections 54960, 54960.1, 66499.36, and all applicable provisions of the California Environmental Quality Act. Nothing in this comment constitutes a waiver of any such rights. Respectfully submitted, Georgine Scott-Codiga Founder, Americans for Transparency AFNPT@proton.me All facts stated herein are sourced to primary public documents and confirmed written City records. First Amendment press protections apply. This comment is submitted as a public record and may be published. GSC for AFT Sent with Proton Mail secure email.