560 Mission Street, Suite 1900 | San Francisco, CA 94105 | T 415.743.6900 | F 415.743.6910 Holland & Knight LLP | www.hklaw.com
Genna Yarkin
+1 415-743-6990
[email protected]
Daniel R. Golub
+1 415-743-6976
[email protected]
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August 6, 2025
Palo Alto Planning Department
285 Hamilton Avenue - 5th Floor
Palo Alto, CA 94301
Re: Response to the City’s June 27, 2025 Letter and Invocation of AB 130 CEQA Exemption for 156 N. California Avenue - App. 24PLN-00100 Dear All:
As you know, we represent Midar Investment Co. LLC (the “Applicant”) in connection with its housing development application for 382 multifamily residential units under Application 24PLN- 00100 (the “Project”) at 156 N. California Avenue (the “Project Site”) in Palo Alto (the “City”), California. As documented in previous communications, the Project is a “housing development project” that is subject to the protections of the Housing Accountability Act (the “HAA”), inclusive of the “Builder’s Remedy.” This letter:
1) Provides the Applicant’s response to the City’s June 27, 2025 letter “Re: 156 N. California Venue – 24PLN-00100” (“Letter”); and
2) Documents the Project’s eligibility for the California Environmental Quality Act (“CEQA”) exemption enacted with the June 30, 2025 adoption of Assembly Bill (“AB”) 130, and serves as the Applicant’s request that the City proceed under such exemption and begin the consultation and review process required by that law.
The City is required to initiate the AB 130 tribal consultation process within 14 days of this letter.
Response to the City’s June 27, 2025 Letter
We first note that the Applicant elects to proceed under the provisions of the HAA in effect at the time of the Application’s preliminary application, as the Legislature gave the Applicant the right to do in last year’s “Builder’s Remedy” reforms. See Gov. Code § 65589.5(f)(7)(A); see also Stats. 2024, Ch. 268, § 1(i) (AB 1893’s provisions “s hould not be interpreted as constraints on or impediments to processing current ‘builder’s remedy’ project applications deemed complete”).
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August 6, 2025
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With respect to the remainder of the Letter, the Applicant continues to dispute several of the City’s characterizations. The City’s review process by several departments continues to be piecemeal, with “interim reports” being provided instead of a full range of comments for the Applicant team to address. Entirely new comments have continued to be provided long after the first exhaustive round of “inconsistency” comments were resolved (for example with respect to a new comment regarding the Project’s proposed transformers). Communication with staff has been, and continues to be, spotty.
Most recently, City staff have provided an updated EIR schedule in which a Draft EIR would not even be circulated until February 2026 – a year and a half after the application was complete, which will result in EIR certification long after the one -year statutory deadline from completeness.1 In light of this, we assume it is not surprising that the Applicant is now invoking its rights to proceed with a CEQA-exempt review process.
As the City suggests, the Applicant would very much like to move forward cooperatively in good faith. To that end, the Applicant continues to make itself available for bi-weekly meetings to resolve any outstanding issues. The Applicant hopes and expects that the review remaining for the Project in light of its exemption from CEQA will be conducted in a n efficient fashion, consistent with applicable laws.,
Request to Proceed Using AB 130 CEQA Exemption and Initial Consultation Pursuant to PRC § 21080.66(b)(1)(A)(ii), the Project is exempt from CEQA and the City is required to commence formal tribal notification and consultation to process the Application under the. Specifically, the City is now required to:
• Notify California Native American tribes traditionally affiliated with the area within 14 days, using certified mail and email.
• Include required project information (site maps, description, studies, contact info, etc.) • Conclude consultation in accordance with the timelines and procedures specified in the statute.
Since we understand that the City already reached out to tribes to conduct the tribal consultation currently underway for the current EIR process, we expect it should be relatively straightforward to again contact tribes affiliated with the area with the more specific consultation notice required by AB 130. For ease of use, below is form language the City can use to initial consultation:
This letter serves as notification from the City of Palo Alto (the “City”) pursuant to Public Resources Code Section 21080.66(b)(1)(A), that a development proponent has notified the City that its project is eligible for an exemption from the California Environmental Quality
1 Pub. Res. Code § 21151.5(a)(1)(A); Cal. Code Regs. Tit. 14, § 15108.
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August 6, 2025
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Act (“CEQA”) pursuant to Public Resources Code Section 21080.66 . This notification is an “invitation to consult” regarding the development project’s potential effects on tribal cultural resources.
The project is a housing development application by Midar Investment Co. LLC (the “Applicant”) for 382 multifamily residential units under City Application 24PLN-00100 (the “Project”) at 156 N. California Avenue (the “Project Site”). This is the same Project for which the City previously solicited consultation on [DATE].
Within 60 days of this notification, you must notify the City regarding your acceptance of this invitation to consult. If you choose not to accept the invitation to consult, or do not notify the City of your decision within 60 days, the consultation shall be considered to have concluded.
Contact information for the Applicant and the City are as follows:
• [Insert desired City contact]
• Midar Investment Co. LLC
150 Shoreline Hwy, Bldg D Suite 5
Mill Valley, CA 94941
Phone: (415) 942-7902
Enclosed please find further Project details, including site maps, proposed project scope, and any known cultural resource studies.
Eligibility For AB 130 CEQA Exemption
The Project and the Project Site meet all conditions required under PRC Section 21080.66 for CEQA exemption, as follows:
Table 1 - General Requirements
Requirement Analysis
21080.66(a)(1) – Lot Size
A. Except as provided in subparagraph (B), the
project site is not more than 20 acres.
B. The project site or the parcel size for a
builder’s remedy project, as defined in
paragraph (11) of subdivision (h) of Section
65589.5 of the Government Code, or the
project site or the parcel size for a project that
applied pursuant to paragraph (5) of
This builder’s remedy Project Site is approx. 1.4
acres (Lot A: 1.144 acre and Lot B: 0.292) – this
is fewer than the five acres allowed pursuant to
subparagraph (B). Therefore, the Project is
consistent with subparagraph (B).
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August 6, 2025
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subdivision (d) of Section 65589.5 of the
Government Code as it read before January
1, 2025, is not more than five acres.
21080.66(a)(2) – Project Location
The project site meets either of the following criteria:
A. Is located within the boundaries of an
incorporated municipality.
B. Is located within an urban area, as defined by
the United States Census Bureau.
The Project Site is located within Palo Alto,
which is an incorporated municipality and an
urban area, as defined by the United States
Census Bureau]. Therefore, the Project is
consistent with subparagraph (A) and (B).
21080.66(a)(3) – Infill Development Status
The project site meets any of the following criteria:
A. Has been previously developed with an
urban use.2
B. At least 75 percent of the perimeter of the site
adjoins parcels that are developed with urban
uses.
C. At least 75 percent of the area within one -
quarter mile radius of the site is developed
with urban uses.
D. For sites with four sides, at least three out of
four sides are developed with urban uses and
at least two-thirds of the perimeter of the site
adjoins parcels that are developed with urban
uses.
Here, the Project Site is located on two lots in
the City of Palo Alto. Lot A currently contains
a grocery store and surface parking lot; Lot B
contains a surface parking lot. Therefore, the
Project is consistent with subparagraph A.
Although not required to qualify, the Project is
also consistent with B and D, and likely C as
well.
21080.66(a)(4) – GP/ZC Consistency
A. The project is consistent with the applicable
general plan and zoning ordinance, as well as
any applicable local coastal program as
defined in Section 30108.6.
Government Code Section 65589.5(f)(6)(D)(iii)
states that a builder’s remedy project “… shall
be deemed consistent, compliant, and in
conformity with an applicable plan, program,
policy, ordinance, standard, requirement,
redevelopment plan and implementing
instruments, or other similar provision for all
purposes, and shall not be considered or treated
2 An “urban use” is defined by Pub. Res. Code section 21080.66(f)(3) to mean “any current or previous residential or commercial development, public institution, or public park that is surrounded by other urban uses, parking lot or structure, transit or transportation passenger facility, or retail use, or any combination of those uses.” Palo Alto Planning Department
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For purposes of this section, a housing
development project shall be deemed
consistent with the applicable general plan
and zoning ordinance, and any applicable
local coastal program, if there is substantial
evidence that would allow a reasonable
person to conclude that the housing
development project is consistent.
B. If the zoning and general plan are not
consistent with one another, a project shall
be deemed consistent with both if the project
is consistent with one.
C. The approval of a density bonus, incentives
or concessions, waivers or reductions of
development standards, and reduced parking
ratios pursuant to Section 65915 of the
Government Code shall not be grounds for
determining that the project is inconsistent
with the applicable general plan, zoning
ordinance, or local coastal program.
as a nonconforming lot, use, or structure for any
purpose.” As such, by operation of law, the
Project is consistent with the applicable general
plan and zoning ordinance, therefore qualifying
under PRC § 21080.66(a)(4).
Moreover, AB 130 expressly provides that
Builder’s Remedy projects can be subject to AB
130 if the project site is 5 acres or less.
21080.66(a)(5) – Minimum Density Requirement
The project will be at least one-half of the applicable density specified in subparagraph (B) of paragraph
(3) of subdivision (c) of Section 65583.2 of the
Government Code.
See Default Density Standard Option – 2020
Census Update to determine the applicable
density specified in Government Code section
65583.2(c)(3)(B). This is also known as the
“Mullin density.”
The applicable density specified in Government
Code section 65583.2(c)(3)(B) is 30 du/ac.
One-half of the applicable density specified in
Government Code section 65583.2(c)(3)(B) is
an applicable minimum of 15 du/ac.
This Project complies with Section
21080.66(a)(5).
21080.66(a)(6) – SB 35 Environmental Criteria
The project satisfies the requirements specified in
paragraph (6) of subdivision (a) of Section 65913.4
of the Government Code.
See Table 2.
See Table 2 regarding “Environmental Site
Criteria.” The Project satisfies these criteria.
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21080.66(a)(7) – Historic Resources
The project does not require the demolition of a
historic structure that was placed on a national, state, or local historic register before the date a preliminary application was submitted for the project pursuant to
Section 65941.1 of the Government Code.
The Project does not require demolition of a
historic structure that was placed on a national,
state, or local register before the date a
preliminary application was submitted for the
project. Therefore, the Project complies with
Section 21080.66(a)(7).
21080.66(a)(8) – Hotels Prohibited
For a project that was deemed complete pursuant to
paragraph (5) of subdivision (h) of Section 65589.5
of the Government Code on or after January 1, 2025,
no portion of the project is designated for use as a
hotel, motel, bed and breakfast inn, or other transient lodging.
For purposes of this section, “other transient lodging” does not include either of the following:
A. A residential hotel, as defined in Section
50519 of the Health and Safety Code.
B. After the issuance of a certificate of
occupancy, a resident’s use or marketing of
a unit as short -term lodging, as defined in
Section 17568.8 of the Business and
Professions Code, in a manner consistent
with local law.
The Project is consistent with Section
21080.66(a)(8) because it does not propose a
hotel, motel, bed and breakfast inn, or other
transient lodging.
21080.66(b) – Tribal Consultation Required
The local government shall engage in formal
notification and consultation with each California
Native American tribe that is traditionally and
culturally affiliated with the Project Site, pursuant to the various requirements of Government Code
section 21080.66(b).
The City must comply.
21080.66(c)(1) – Phase I ESA Required
A. The local government shall, as a condition of
approval for the development, require the
development proponent to complete a Phase
I Environmental Assessment, as defined in
Section 78090 of the Health and Safety
Code.
The Applicant will comply as required.
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B. If a recognized environmental condition is
found, the development proponent shall
complete a preliminary endangerment
assessment, as defined in Section 78095 of
the Health and Safety Code, prepared by an
environmental assessor to determine the
existence of any release of a hazardous
substance on the site and to determine the
potential for exposure of future occupants to
significant health hazards from any nearby
property or activity.
C. If a release of a hazardous substance is found
to exist on the site, the release shall be
removed or any effects of the release shall be
mitigated to levels required by current
federal and state statutory and regulatory
standards before the local government issues
a certificate of occupancy.
D. If a potential for exposure to significant
hazards from surrounding properties or
activities is found to exist, the effects of the
potential exposure shall be mitigated to
levels required by current federal and state
statutory and regulatory standards before the
local government issues a certificate of
occupancy.
21080.66(c)(2) – Units Near Freeways
For any house on the site located within 500 feet of a
freeway, all of the following shall apply:
A. The building shall have a centralized heating,
ventilation, and air-conditioning system.
B. The outdoor air intakes for the heating,
ventilation, and air -conditioning system
shall face away from the freeway.
C. The building shall provide air filtration
media for outside and return air that provides
a minimum efficiency reporting value of 16.
D. The air filtration media shall be replaced at
the manufacturer’s designated interval.
No portion of the Project Site is within 500 feet
of a freeway. Although a p ortion of the Project
Site appears to be within 500 feet of the Oregon
Expressway on -ramp, an “expressway” is
different than a “freeway.” See for example CA
St & Hwy Code Section 257.
If for some reason it is determined that any
housing units are within 500 feet of a freeway ,
the Project would be designed to meet the
specifications in the statute.
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E. The building shall not have any balconies
facing the freeway.
21080.66(d) – Labor Requirements
The Project will comply with these
requirements as applicable.
Table 2 – Environmental Site Criteria:
Requirement Analysis
(A. – Coastal Zone)
i. An area of the coastal zone subject to
paragraph (1) or (2) of subdivision (a) of
Section 30603 of the Public Resources Code.
ii. An area of the coastal zone that is not subject
to a certified local coastal program or a
certified land use plan.
iii. An area of the coastal zone that is vulnerable
to five feet of sea level rise, as determined by
the National Oceanic and Atmospheric
Administration, the Ocean Protection
Council, the United States Geological
Survey, the University of California, or a
local government’s coastal hazards
vulnerability assessment.
iv. In a parcel within the coastal zone that is not
zoned for multifamily housing.
v. In a parcel in the coastal zone and located on
either of the following:
I. On, or within a 100-foot radius of, a
wetland, as defined in Section 30121
of the Public Resources Code.
II. On prime agricultural land, as
defined in Section 30113 and 30241
of the Public Resources Code.
See California Coastal Commission Coastal
Zone Boundary map.
Pursuant to California Government Code
Section 65913.4(6)(A), the Project site is not
located in a coastal zone
(B. – Prime Farmland)
See California Department of Conservation
Important Farmland Finder map.
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Either prime farmland or farmland of statewide
importance, as defined pursuant to the United States
Department of Agriculture land inventory and
monitoring criteria, as modified for California, and
designated on the maps prepared by the Farmland
Mapping and Monitoring Program of the Department
of Conservation, or land zoned or designated for
agricultural protection or preservation by a local
ballot measure that was approved by the voters of that
jurisdiction.
Pursuant to California Government Code
Section 65913.4(6)(B), the Project site is not
located on Prime Farmland or Farmland of
Statewide Importance. The Project site and
surrounding area are designated Urban and
Built-Up Land.
(C. – Wetlands)
Wetlands, as defined in the United States Fish and
Wildlife Service Manual, Part 660 FW 2 (June 21,
1993).
See National Wetlands Inventory, Surface
Waters and Wetlands.
Pursuant to California Government Code
Section 65913.4(6)(C), the Project site is not
located on a wetland.
(D. – Very High Fire Hazard Severity Zone)
Within a very high fire hazard severity zone, as
determined by the Department of Forestry and Fire
Protection pursuant to Section 51178, or within the
state responsibility area, as defined in Section 4102
of the Public Resources Code. This subparagraph
does not apply to sites that have adopted fire hazard
mitigation measures pursuant to existing building
standards or state fire mitigation measures applicable
to the development, including, but not limited to,
standards established under all of the following or
their successor provisions:
i. Section 4291 of the Public Resources Code
or Section 51182, as applicable.
ii. Section 4290 of the Public Resources Code.
iii. Chapter 7A of the California Building Code
(Title 24 of the California Code of
Regulations).
See California Department of Forestry and Fire
Protection's Fire and Resource Assessment
Program FHSZ Viewer.
See California Board of Forestry and Fire
Protection, State Responsibility Area Viewer
Pursuant to California Government Code
Section 65913.4(6)(D), the Project site is not
located within a very high fire hazard severity
zone, as determined by the Department of
Forestry and Fire Protection pursuant to Section
51178, or within the state responsibility area, as
defined in Section 4102 of the Public Resources
Code
(E. – Hazardous Waste)
A hazardous waste site that is listed pursuant to
Section 65962.5 or a hazardous waste site designated
by the Department of Toxic Substances Control
See CalEPA’s Cortese List Data Resources.
Pursuant to California Government Code
Section 65913.4(6)(E), the Project site is not a
hazardous waste site that is listed pursuant to
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August 6, 2025
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pursuant to Section 25356 of the Health and Safety
Code, unless either of the following apply:
i. The site is an underground storage tank site
that received a uniform closure letter issued
pursuant to subdivision (g) of Section
25296.10 of the Health and Safety Code
based on closure criteria established by the
State Water Resources Control Board for
residential use or residential mixed uses.
This section does not alter or change the
conditions to remove a site from the list of
hazardous waste sites listed pursuant to
Section 65962.5.
ii. The State Department of Public Health, State
Water Resources Control Board, Department
of Toxic Substances Control, or a local
agency making a determination pursuant to
subdivision (c) of Section 25296.10 of the
Health and Safety Code, has otherwise
determined that the site is suitable for
residential use or residential mixed uses.
Section 65962.5 or a hazardous waste site
designated by the Department of Toxic
Substances Control (DTSC) pursuant to
Section 25356 of the Health and Safety Code.
(F. – Earthquake Fault Zones)
Within a delineated earthquake fault zone as
determined by the State Geologist in any official
maps published by the State Geologist, unless the
development complies with applicable seismic
protection building code standards adopted by the
California Building Standards Commission under the
California Building Standards Law (Part 2.5
(commencing with Section 18901) of Division 13 of
the Health and Safety Code), and by any local
building department under Chapter 12.2
(commencing with Section 8875) of Division 1 of
Title 2.
See California Department of Conversation’s
EQZapp: California Earthquake Hazards Zone
Application
Pursuant to California Government Code
Section 65913.4(6)(F), the Project site is not
located within a delineated earthquake fault
zone.
(G. – Special Flood Hazard Area)
Within a special flood hazard area subject to
inundation by the 1 percent annual chance flood
(100-year flood) as determined by the Federal
Emergency Management Agency in any official
maps published by the Federal Emergency
Management Agency. If a development proponent is
See FEMA Flood Map Service Center: Search
By Address tool
Pursuant to California Government Code
Section 65913.4(6)(G), the Project site is not
located in a special flood hazard area subject to
inundation by the one percent annual chance
flood (100-year flood) as determined by the
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able to satisfy all applicable federal qualifying
criteria in order to provide that the site satisfies this subparagraph and is otherwise eligible for
streamlined approval under this section, a local
government shall not deny the application on the
basis that the development proponent did not comply
with any additional permit requirement, standard, or
action adopted by that local government that is
applicable to that site. A development may be located
on a site described in this subparagraph if either of
the following are met:
i. The site has been subject to a Letter of Map
Revision prepared by the Federal Emergency
Management Agency and issued to the local
jurisdiction.
ii. The site meets Federal Emergency
Management Agency requirements
necessary to meet minimum flood plain
management criteria of the National Flood
Insurance Program pursuant to Part 59
(commencing with Section 59.1) and Part 60
(commencing with Section 60.1) of
Subchapter B of Chapter I of Title 44 of the
Code of Federal Regulations.
Federal Emergency Management Agency
(“FEMA”). The Project site is located in Zone
X, which is not considered a special flood
hazard area.
(H. – Regulatory Floodway)
Within a regulatory floodway as determined by the
Federal Emergency Management Agency in any
official maps published by the Federal Emergency
Management Agency, unless the development has
received a no -rise certification in accordance with
Section 60.3(d)(3) of Title 44 of the Code of Federal
Regulations. If a development proponent is able to
satisfy all applicable federal qualifying criteria in
order to provide that the site satisfies this
subparagraph and is otherwise eligible for
streamlined approval under this s ection, a local
government shall not deny the application on the
basis that the development proponent did not comply
with any additional permit requirement, standard, or
action adopted by that local government that is
applicable to that site.
See FEMA Flood Map Service Center: Search
By Address tool.
Pursuant to California Government Code
Section 65913.4(6)(H), the Project site is not
located within a regulatory floodway as
determined by FEMA. The Project site is
located in Zone X, which is defined as an area
of minimal flood hazard.
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August 6, 2025
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(I. Natural Community Conservation
Plan/Habitat Conservation Plan)
Lands identified for conservation in an adopted
natural community conservation plan pursuant to the
Natural Community Conservation Planning Act
(Chapter 10 (commencing with Section 2800) of
Division 3 of the Fish and Game Code), habitat
conservation plan pursuant to the federal Endangered
Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), or
other adopted natural resource protection plan.
See California Natural Community
Conservation Plans.
The project site is located in Santa Clara
County, where the Santa Clara Valley Habitat
Plan (an NCCP/HCP) is in effect. However,
according to the Santa Clara Valley Habitat
Agency Viewer, the site is located outside the
boundaries of the Habitat Plan area. Therefore,
it is not identified for conservation pursuant to
California Government Code Section
65913.4(6)(I).
(J. – Habitat for Protected Species)
Habitat for protected species identified as candidate,
sensitive, or species of special status by state or
federal agencies, fully protected species, or species
protected by the federal Endangered Species Act of
1973 (16 U.S.C. Sec. 1531 et seq.), the California
Endangered Species Act (Chapter 1.5 (commencing
with Section 2050) of Division 3 of the Fish and
Game Code), or the Native Plant Protection Act
(Chapter 10 (commencing wit h Section 1900) of
Division 2 of the Fish and Game Code).
See, e.e.g, USFWS Critical Habitat Portal
Pursuant to California Government Code
Section 65913.4(6)(J), the Project site does not
contain habitat for protected species identified
as candidate, sensitive, or species of special
status by State or federal agencies, fully
protected species, or species protected by the
federal Endangered Species Act of 1973, the
California Endangered Species Act, or the
Native Plant Protection Act.
(K. Conservation Easement)
Lands under conservation easement.
Pursuant to California Government Code
Section 65913.4(6)(K), the Project site is not
land under conservation easement.
Sincerely,
HOLLAND & KNIGHT LLP
Genna Yarkin
Daniel R. Golub
cc: Caio Arellano, Albert Yang - City Attorney’s Office