YIMBYLaw
2261 Market Street STE 10416
San Francisco, CA 94114
[email protected]
7/13/2026
City of San Jose
Planning Division
200 E. Santa Clara St.
San Jose, Ca 95113
Re: 470 W. San Carlos Street development permit
Dear San Jose Planning Commission,
YIMBY LAW
YIMBY Law is a 501{c)3 non-profit corporation, whose mission is to increase the accessibility and affordability of housing in California. YIMBY Law sues municipalities when they fail to comply with state housing laws, including the Housing Accountability Act (HAA). This Planning Department has an obligation to abide by all relevant state housing laws when evaluating the above captioned proposal, including the HAA. Should the City fail to follow the law, YIMBY Law will not hesitate to file suit to ensure that the law is enforced.
This project will include 276 residential units of housing, including 14 units for very low income households. The site is currently vacant. We urge you to follow your staff's recommendation to grant the site development permit and find it eligible for AB 130 CEQA exemption.
AB 130 exempts all proposed developments from CEQA where they are on sites under 5 acres, dedicate at least % of their square footage to residential use and comply with all applicable general plan and zoning ordinances. As your staff have identified, it complies with the General Plan and Zoning designation, It qualifies as an urban infill site and does not fall into the definition of an environmentally sensitive area or require the destruction of historic structures.
As such the project is exempt from CEQA review. The applicants have submitted an analysis detailing its qualification under AB 130's exemptions.
California Government Code § 65589.5, the Housing Accountability Act prohibits localities from denying housing development projects that are compliant with the locality's zoning ordinance or general plan at the time the application was deemed complete, unless the locality can make findings that the proposed housing development would be a threat to public health and safety. § 65589.5 (j)(3) elaborates that the receipt of a density bonus does not constitute a valid basis on which to find a proposed housing development project is inconsistent, not in compliance, or not 1 in conformity, with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision.
I am signing this letter both in my capacity as the Executive Director of YIMBY Law, and as a resident of California who is affected by the shortage of housing in our state.
Sincerely,
Sonja Trauss
Executive Director
YIMBY Law
2 Attachment H: Public Comments Page 53
Gifford Residential
470 W San Carlos
Community Questions and Comments
URBAN CATALYST
AB130
• Address whether the 276-unit project qualifies under the AB 130 exemption. (LETTER DATED 07/03/26)
- AB 130 applies
• Clarify the 500-unit AB 130 language. (LETTER DATED 07/03/26) - This language applies to mixed-use projects; Gifford is residential-only. • Clarify hazardous material and active clean-up site status/closure letter (SMP). (LETTER DATED 07/03/26)
- We are not on the Cortese List. We have an approved SMP for soil management that will be adjusted for project-specific off-haul.
• Provide the status of any closure letter or cleanup determination. (LETTER DATED 07/03/26)
- No closure letter for this site is required.
• Local Transportation Analysis. (LETTER DATED 07/03/26) - No LTA is required due to the AB 130 CEQA exemption.
SDB
• State Density Bonus waivers to Downtown Design Guidelines / DSAP. (LETTER DATED 07/03/26)
- State law allows design waivers to guidelines that would reduce the intensity of housing.
• Address request that Council not accept the 14 affordable units if Density Bonus waivers are used to override adopted design guidelines. (LETTER DATED 06/24/26) - UC must meet both the City’s IHO policy which requires units on-site as well as State Density Bonus law which also requires on-site units (5% Very Low Income). • Address concern that approving design below adopted guidelines will set a precedent for future W. San Carlos projects. (LETTER DATED 07/03/26) • - State Density Bonus allows for waivers to design guidelines. • Address request that public subsidies/ funds/fee reductions are tied to this project.
Attachment H: Public Comments Page 54
- This project is not funded or subsidized by the city of San Jose. We do qualify for the MHIP for fee reductions, but this is not part of the entitlement process.
City / Technical Documents
• Confirm Storm Water Pollution Prevention Plan or applicable construction stormwater plan.
- Site is approximately 0.89 gross acres, and SWPPP related to sites over 1 acre. however, the site will maintain a Construction Erosion and Sediment Control plan.
We are currently under an erosion-control monitoring plan with the City and are in compliance.
• Provide/confirm TDM and parking-control commitments.
- TDM can be made available.
Trash / Service
• Trash/service pickup on Gifford. (LETTER DATED 06/24/26) (LETTER DATED 07/03/26)
- Defer to DOT grand boulevard requirements.
Parking / Access / Traffic
• Address traffic and circulation impacts on Gifford.
- DOT to comment.
• Address parking spillover into the neighborhood/RPP.
- No RPP passes will be allowed.
• Use the West San Carlos address rather than the Gifford address. - Address changed to 470 W. San Carlos.
Public Works / Public Right-of-Way
• Provide a plan for the pedestrian crossing at Gifford and San Carlos. - Keystone contributed $55k, Aquino contributed $55k, and Gifford will contribute $55k; SN+I should coordinate with the Councilmember to advance implementation. • Additional bulb-outs on Gifford.
- PW and DOT to comment.
• Clarify Gifford sidewalk, park-strip, tree-well, and walking-area treatment along the project frontage.
- UC proposed removing decomposed granite park strips between tree wells to create more walking area.
Attachment H: Public Comments Page 55
Design / Architecture
• Increase the setback along Gifford and/ or W San Carlos (LETTER DATED 07/03/26) - Offsetting the building, pushing it back from Gifford and towards the neighboring driveway, as requested by S+NI, would result in a significant loss of windows due to city building code requirements – these units need windows - A Gifford and/or W. San Carlos setback would reduce units under State Density Bonus constraints.
- Ground floor setback impacts square footage required for building operations and setback to floors 2-8 reduces net rentable area, eliminating project feasibility. • Add more relief, reveals, trim, recesses, or furring. - No change (other than additional balconies addressed below) • Add a second bank of balconies on Gifford.
- UC will add an additional balcony column on Gifford to break up the massing, and change the balcony color/face to a wood-like grain instead of blue. Will occur as an adjustment during construction document phase
• Recess windows.
- No change
• Concern that checkerboard paint/stucco is not enough architectural treatment. - The exterior is similar to Keystone and Aquino in material quality; UC selected durable, architecturally long-lasting materials instead of cheaper alternatives. • Confirm extent of overhead lines/poles that will be undergrounded across the project frontage.
- UC is undergrounding overhead lines on the project side of Gifford and running new underground service to the four Gifford homes across the street (322-340 Gifford Ave.); UC will replace what it touches during these improvements.
Construction Impacts
• Provide a plan for site maintenance if the project does not proceed quickly. - We changed product type from senior to midrise multifamily, a proven buildable product in tough financial markets for CRE.
• Prevent the site from becoming weeds, trash, graffiti, rodents, or nuisance conditions.
- We currently maintain the site and will continue until breaking ground. • Construction hours for site and building exterior work should be limited to 7 AM to 5 PM, Monday through Friday, with expanded hours only after exterior work is complete (LETTER DATED 06/24/26)
Attachment H: Public Comments Page 56
- Construction hours as proposed allow us to finish the project faster shaving months off the schedule. UC okay with no concrete pours on Saturdays and will work with DOT/PW on grading haul route to limit impacts on Gifford. • Address construction noise before allowed work hours. - Noise will be strictly supervised and controlled prior to and after construction hours.
• Independent preconstruction crack/foundation assessments by a licensed property inspector for requested homes, with reports held by property owners. (LETTER DATED 06/24/26)
- Crack survey and monitoring are okay to add for the five homes across from the site along Gifford, and on the commercial property adjacent to the site. City requirements obligate a 30’ radius for crack survey/ monitoring/ mitigation, so this would be in addition to city requirements.
• Replace existing single-paned windows for interested property owners due to construction-noise impacts. (LETTER DATED 06/24/26)
- No change
• Address construction lighting impacts.
- We will ensure lighting during construction does not impact residents during early morning and evening hours.
• Provide direct superintendent contact information during construction. - Yes, we will provide this information.
• Provide proactive construction notices.
- Yes, we will provide this information.
• Address sidewalk closures, detours, and pedestrian safety during construction (Site Utilization Plan).
- We will undergo a Site Utilization Plan process to ensure pedestrian and vehicular safety, approved by the City.
• Limit construction vehicles/equipment with backup beepers to W. San Carlos and keep them off Gifford. (LETTER DATED 06/24/26)
- UC cannot remove truck/equipment backup beepers; they are an OSHA safety requirement.
• Concrete/cement pours should occur from W. San Carlos only, not in front of Gifford homes. (LETTER DATED 06/24/26)
- Concrete truck/ pump staging will be on W. San Carlos. Advanced notice will be given. UC can agree to no concrete pours on Saturdays.
Attachment H: Public Comments Page 57
• Erect a sound wall/barrier along Gifford at the height of the existing homes. (LETTER DATED 06/24/26)
- UC can agree to an 8-foot sound barrier on the Gifford frontage fence. • Address request that UC cover property-owner costs for sewer or water line failures from construction start until two years after certificate of occupancy. (LETTER DATED 06/24/26)
- UC agrees to fix laterals on the 5 homes listed above on Gifford assuming cause of failure was born by UC from Grading Process. We will however provide scoping services to document existing conditions prior to major construction activity, to survey the property owner portion of the sewer lines.
Neighborhood / Public Realm
• Beautify the San Carlos/Highway 87 underpass. NO
• Create a plan for underpass cleaning, maintenance, lighting, and basic improvements. NO
• Explore PBID/Downtown Association expansion or maintenance support for the San Carlos gateway.
- Potential PBID expansion would likely require Gifford/Delmas W. San Carlos property owners to vote into additional assessments; the Downtown Association/PBID may be open if the math works.
Attachment H: Public Comments Page 58
Attachment H: Public Comments Attachment H: Public Comments Attachment H: Public Comments Page 59 Page 59 Page 59 2/23/26, 12:13 PM Attachment H: Public Comments
� Outlook
Comments on H25-039
Date Sat 2/21/2026 2:48 PM
Inbox - Guerrero, Jacqueline - Outlook
To Guerrero, Jacqueline <[email protected]> [External Email. Do not open links or attachments from untrusted sources. Learn morel [External Email]
Hi, I?m in support of this project, as it will continue to transform the neighborhood in a positive way, bringing in more residents within walking distance of downtown. However, I oppose the proposed extended construction hours. The site adjoins residential uses and Urban Catalyst?s other multi-family residential project that?s under construction at 498 W. San Carlos St (Aquino) has frequently violated the allowable constrnction hours, notably on certain days starting work before 7:00 a.m. and continuing on after 7:00 p.m., such as days of extensive concrete pours - February 20, 2026 is one such date.
Construction work has also occurred on recent holidays such as Martin Luther King Jr. Day and Presidents? Day. I?ve informed the Building Division about these violations, but have yet to hear back.
Because of Urban Catalyst?s disregard of the allowable construction hours on their other project, I don?t have faith that they will follow the ordinance requirements for this project. There shouldn?t be extended hours when there are many existing residents nearby. Thank you for your consideration. George This message is from outside the City email system. Do not open links or attachments from untrusted sources.
This message is from outside the City email system. Do not open links or attachments from untrusted sources. https://outlook.office.com/mail/0/inbox/id/AAkALgAAAAAAHYQDEapmEc2byACqAC%2FEWg0AfK5baUYG4EKcKKCIN2EhbQAF74QJFQAA?deeplink... 1/1 Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Three Embarcadero Center, 25th Floor | San Francisco, CA 94111-4074 Telephone: | Facsimile: 415.837.1516
www.allenmatkins.com
Zachary D. Rego
E-mail: [email protected]
Direct Dial: File Number: 378913.00001/4900-4836-6269.3 Los Angeles | Orange County | San Diego | Century City | San Francisco | New York Allen Matkins
July 18, 2026
Planning Division
City of San Jose
200 E. Santa Clara St.
Tower, 3rd Floor
San Jose, CA 95113
Re: Gifford Project – Response to S+NI Letter
Dear Planning Division:
This firm represents Urban Catalyst (“Applicant”), the applicant for the proposed residential development project (“Project”) located at 313 Gifford Avenue (“Property”). This letter is in response to the Stakeholders + Neighborhoods Initiative (“SNI”) letter received by your Division on July 13, 2026, raising various alleged issues with the Project application. As we explain below, SNI’s assertions lack legal or factual bases and do not merit consideration by this Division. Other assertions appear to be related to clerical errors or other minor gaps in the administrative record which are easily remedied and should not substantially impact the Project, application, or approval timeline. The intent of this letter is to confirm that substantial evidence supports the City’s findings that the Project 1) qualifies for a statutory exemption from the California Environmental Quality Act (“CEQA”) pursuant to Public Resources Code Section 21080.66 (“AB 130”) and 2) the City granted the Project’s Density Bonus Law (“DBL”) waivers in full compliance with state law. Other assertions raised by SNI’s letter will be addressed in separate filings.
I. AB 130 CEQA Exemption
The Project qualifies for the exemption from review under the California Environmental Quality Act (“CEQA”) known as “AB 130.” (Pub. Res. Code § 21080.66.) The alleged issues relating to the Project’s qualification for AB 130 raised in the SNI letter lack legal foundation. As explained below: 1) the Property is not on the Cortese list; 2) the environmental conditions of approval (“COAs”) are not inappropriate; 3) the City’s CEQA exemption determination is supported by substantial evidence; 4) the Project does not exceed 85 feet when measured in compliance with AB 130; 5) the City conducted a legally defensible tribal consultation process and incorporated required COAs; and 6) Applicant fully intends to satisfy the requirement to conduct a Phase I Environmental Site Assessment (“ESA”) as a condition of approval.
Attachment H: Public Comments Page 60
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Planning Division
July 18, 2026
a. The Property is Not on the Cortese List
The SNI letter states that the Project is ineligible for AB 130 because it is an “active cleanup site listed under Government Code section 65962.5 with no residential-suitability determination.” This statement is incorrect and reflects an incomplete understanding of what it actually means for a site to be listed under Government Code section 65962.5 (also known as the “Cortese List”).
AB 130 is clear: a hazardous waste site that is listed on the Cortese List is ineligible for AB 130. (Pub. Res. Code § 21080.66(a)(6); Gov. Code §§ 65913.4(a)(6).) The “Cortese List” is a statewide compilation of hazardous waste sites defined according to nine statutory categories and maintained by the California Environmental Protection Agency (“CalEPA”). (Pub. Res. Code § 21080.66(a)(6); Gov. Code §§ 65913.4(a)(6), 65962.5.) If a site is not listed under one of the nine statutory categories, it is not on the Cortese List, even if it includes an active cleanup under regulatory oversight. Notably, the SNI letter does not, as it cannot, identify which of the nine statutory categories the Property is listed under.
The Property is associated with a voluntary Site Cleanup Program case administered by the Santa Clara County Department of Environmental Health (“SCCDEH”). SCCDEH opened the case in 2021 after approving Applicant’s application for regulatory oversight under Health and Safety Code section 101480. The Property was listed on GeoTracker following the execution of a Remedial Action Agreement by the Applicant and SCCDEH. The Property’s presence in the GeoTracker database does not mean it is on the Cortese List. Only those cases falling within the specific categories enumerated in Government Code Section 65962.5 qualify. As shown in Attachment A, Site Cleanup Program cases are not among the categories enumerated in Government Code section 65962.5. The Property is therefore not on the Cortese List and no residential-suitability determination is required to support the City’s determination that the Project qualifies for AB 130.
To be clear, Applicant fully intends to take all necessary actions to ensure the Property is suitable for residential occupancy. Although it is not on the Cortese List, the Property is still subject to the oversight of the City and SCCDEH, which together have ample authority to ensure the Project is protective of future residents. Applicant will comply with all City-imposed COAs and is actively working with SCCDEH to ensure the Soils Management Plan is appropriate for redevelopment of the Property.
b. The City’s Use of Standard Environmental COAs does not Defeat the Project’s CEQA Exemption
SNI argues that the City’s use of certain Standard Environmental Permit Conditions as COAs is incompatible with the Project’s CEQA exemption. Applicant does not share SNI’s concerns and is willing to implement the draft COAs as proposed. As SNI points out, the COAs are standard environmental permit conditions. They are not CEQA mitigation measures, and the City is Attachment H: Public Comments Page 61
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Planning Division
July 18, 2026
within its authority to impose such COAs on the Project. SNI’s argument is legally unfounded to the extent it suggests that the presence of environmentally protective COAs somehow overcomes a clear determination that the Project qualifies for a statutory CEQA exemption. c. The City’s Determination is Supported by Substantial Evidence SNI argues that the City’s determination that the Project qualifies for AB 130 is not supported by substantial evidence. “Substantial evidence” means “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (14 Cal Code Regs § 15384(a); see Laurel Heights Improvement Assn. v Regents of the University of California (1988) 47 Cal.3d 376.) The City’s factual determinations are given substantial deference and are presumed correct; the challenger bears the burden of proving the contrary. (See Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1497.)
On December 23, 2025, the Planning Division Environmental Team produced a memorandum analyzing the Project’s qualification for the AB 130 CEQA exemption. City staff reviewed the Project against each of the statutory criteria and determined the Project qualified for AB 130 except for the fact that it was “included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5” since it was an active clean-up program site.
Applicant responded to this memorandum in a letter dated January 23, 2026, explaining that the active clean-up program site did not disqualify the Project from AB 130, and because the memorandum did not identify any other disqualifying factors, the Project qualified for AB 130.
Therefore, the Environmental Team’s memorandum, Applicant’s January 23, 2026 letter, and this letter, all constitute substantial evidence supporting the City’s determination that the Project qualifies for AB 130. It is irrelevant that Staff changed its position after receiving this additional information.
d. The Project does not Exceed 85 Feet
SNI next argues that, if the Project does qualify for AB 130, Applicant must satisfy the labor standards under Government Code section 65913.4(a)(8) since the Project is over 85 feet tall. The statement of law is correct, but not as applied to the Project. On this point, Applicant believes a correction to the record is warranted.
The Staff Report for the July 15, 2026 Director’s Hearing states that the building height is 89 feet and 3 inches. This figure actually refers to the height of the top of the parapet, not the building height. For the purposes of AB 130, which calculates height in accordance with the California Building Code (“CBC”), the building height is 84 feet and 10.5 inches. (See Applicant’s Plan Sheet Page AP3.20.) The CBC has been adopted by the City. (City Code § 24.03.100.) Attachment H: Public Comments Page 62
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Planning Division
July 18, 2026
CBC Section 202 defines building height as “[t]he vertical distance from grade plane to the average height of the highest roof surface.” Rooftop structures that are not used for habitation or storage may exceed the CBC height limit by up to 20 feet. (CBC § 504.3.) No Project building will exceed 85 feet in height as measured by the CBC, which is the maximum height that the CBC authorizes for the Project’s Type III-A construction typology (wood frame over podium construction).
The CBC is the appropriate method for measuring Project height for the purpose of evaluating AB 130 requirements for several reasons. First, the CBC height measurement methodology has been adopted by the City, as explained above. Second, the CBC, as a state law, is the appropriate tool for measuring height in a state bill such as AB 130. Third, the CBC is used to determine construction typology, and the 85-foot height limit in AB 130 is intended to require additional labor standards for concrete and steel buildings, not Type III-A wood frame over podium construction such as the Project. 1234 Finally, using various local height measurement methodologies would produce the absurd result of potentially creating more than 500 different methods to measure height for AB 130 corresponding to the various cities and counties throughout the state.
Furthermore, while the CBC, and not local zoning regulations or other height methodologies, should be used to evaluate AB 130 compliance as outlined above, the Project also is less than 85 feet in height as measured by the City’s Zoning Code. The Zoning Code defines the 1 See: Danny Curtin of the California Conference of Carpenters testified before the Senate Budget and Fiscal Review Committee on January 25, 2025, “[H]ousing in the private market is done by people who are not in the trade union movement. Almost 100% of private market housing, and we have a 85 foot cap is where this matters. Above that, it becomes structural and much more complicated, and it’s going to be a higher wage base.” 2 See also: Cal Matters article, “Why One Union Became One of the Most Pro-Housing Voices in California,” July 10, 2025, “The Trades say they, too, got what they wanted. For new infill apartments to skip CEQA review, the law requires union-level wages for projects with 100% affordable units, and some union hiring for projects that are taller than 85 feet. Most developments over 85 feet use concrete and steel frame construction, which require a higher skilled labor force that is often unionized anyway, and most entirely income-restricted housing projects make use of public subsidies that require union-level wages. These were relatively modest concessions that Wicks said ‘we were happy to make.’”
3 See also: Cal Matters article, “One of the Biggest Obstacles to Building New CA Housing Has Now Vanished,” June 30, 2025, “Developers of any projects over 85 feet tall would be required to hire a certain share of union workers.
There are added restrictions for construction in San Francisco specifically. By the standards of prior housing streamlining bills, those are relatively modest concessions. Most developments over 85 feet use concrete and steel frame construction, which require a higher skilled labor force that is often unionized anyway.” 4 An 85-foot height threshold to trigger prevailing wage and associated labor requirements was first included in a previous housing bill, SB 423 (2023). The legislative history for SB 423 confirms that the threshold was chosen to require prevailing wage and associated labor requirements for more intense construction typologies that do not apply to the Project. Senator Scott Weiner, the author of SB 423, stated in an Assembly Natural Resources Committee hearing on July 10, 2023, “What we came up with was that one standard up to 85 ft, a different standard above 85 ft, which tends to correlate with steel constructions, different construction type.” (2:10:34 – 2:10:44).) In that same hearing Jay Bradshaw of the Nor Cal Carpenter’s union stated “… the short answer is 85 feet and a quarter inch you’re high rise construction. It's going to be usually type one.” (2:13:13 – 2:13:22).
Attachment H: Public Comments Page 63
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Planning Division
July 18, 2026
“Height” of a building as “the vertical distance between its top surface and the "grade" immediately below it.” (City Code § 20.200.510.) The parapet, which runs along the outside wall of the building’s roof, is not its “surface.” Rather, when measured by either the average height of the roof surface or the roof datum, the Project is under 85 feet. Please refer to Applicant’s Plan Sheet Page AP3.20 demonstrating that the Project does not exceed 85 feet in height as measured by the CBC or the Zoning Code.
e. The City Properly Conducted Tribal Consultation
SNI states that the administrative record should demonstrate that the City completed tribal consultation and incorporated any COAs resulting from that consultation. Applicant understands that the City has completed tribal consultation and that certain conditions (SPC CUL-1, SPC CUL2, and SPC TCR-2) have been incorporated into the Project’s COAs as a result. A statement in the staff report that the City has complied with all AB 130 tribal consultation requirements and is imposing resulting conditions of approval would demonstrate that this requirement has been met. f. Applicant will Satisfy the Phase I ESA Requirement
SNI states that AB 130 requires a Phase I ESA and appropriate follow up as a COA for AB 130 projects. This is an accurate statement of law and Applicant fully intends to comply with this requirement. (Pub. Res. Code § 21080.66(c)(1).) Applicant recommends that the condition to perform a Phase I ESA and satisfy any resulting follow up requirements prior to issuance of a certificate of occupancy be added as a COA.
II. Density Bonus Law
SNI argues that the City’s findings are inadequate with regard to the Project’s calculated number of bonus units and the City’s grant of waivers of certain development standards. As an initial point, the Project does not seek or include bonus units, so the City’s calculation of the number of bonus units the Project could theoretically include is irrelevant and does not impact the Project application. In fact, because neither the base Project nor the theoretical bonus Project achieves the maximum allowable residential density, it is not entitled to any density bonus, as none is needed to achieve a higher density. (See Department of Housing and Community Development Letter to Albert Yang, Assistant City Attorney (March 27, 2026), (“for an application to receive a “density bonus” the maximum allowable gross residential density must be achieved.”)) a. The City’s Findings Supporting Applicant’s DBL Waivers are Legally Sound SNI points out an apparent clerical error in the Staff Report that should be corrected.
Applicant requested five waivers for the Project. The waivers and the City’s justification for granting them are explained on pages 7-8. However, on page 7, the Staff Report incorrectly states “[t]he project has requested fourteen waivers.” This appears to be a clerical error, since, on pages 1- Attachment H: Public Comments Page 64
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Planning Division
July 18, 2026
2, the Staff Report states “[t]he project requests five waivers related to the stepback plane, skylinelevel massing, balconies, ground-floor residential space, and podium-level massing.” SNI argues that this error means that the City’s findings “conflate concessions with waivers” but provides no support for this inexplicable assertion.
SNI goes on to argue that the City is granting waivers that Applicant “did not request” and is recharacterizing other requests for relief from development standards as waiver requests. To make this argument, SNI relies on one of Applicant’s Plan Sheets attached to the Staff Report rather than the document entitled “470 W San Carlos State Density Bonus Modification and Waivers” that Applicant submitted to the City on June 30, 2026 and which is accessible on the City’s Public Permit Search Page. 5 That document includes five requests for waivers under the DBL which correspond to the same five waiver requests analyzed in the Staff Report. In any event, the plain language of the DBL prohibits a city from applying a development standard that physically precludes construction of the project regardless of whether a waiver is requested for that development standard.
6 (Gov. Code § 65915(e)(1).) To clarify any apparent confusion, Applicant has since provided the City with an updated plan set that aligns with the waiver request sheet.
Next, SNI asserts that the City applies the wrong legal standards in granting the waiver requests. Under the DBL, a city is precluded from applying any development standard to a project if it will physically preclude development at the density and with the concessions permitted by the DBL. (Gov. Code § 65915(e)(1).) The courts in Schreiber v. City of Los Angeles (2021) 69 Cal.App.5th 549 and Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App.5th 755 clarified that DBL waivers apply to the project as designed. In other words, when a project qualifies under the DBL, a city may not apply any development standards that physically preclude development of that project. HCD has notified various local agencies that they cannot require a qualifying project to be redesigned in order to avoid the need for a waiver. HCD advised the City of Oceanside: “HCD reminds the City that appellate courts have established (and continue to affirm) that local agencies cannot lawfully redesign a qualifying SDBL project on the theory that if the project were configured differently, it would not need the requested incentives/concessions and waivers. (Wollmer v. Town of Berkeley (2011) 193 Cal.App.4th 1329, 1346–1347.) The City must consider the project as proposed, inclusive of any requested concessions or waivers.”7 Although not required by the DBL, each of Applicant’s five waiver requests is supported by a justification demonstrating that application of the development standard to the Project would preclude development of the Project as proposed by Application. These justifications constitute 5 Accessible here: https://permits.sanjoseca.gov/api/public-portal/permit/attachment?attachmentRSN=499595 6 The DBL reads: “In no case may a city, county, or city and county apply any development standard that will have the effect of physically precluding the construction of a development meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permitted by this section.” (Gov. Code § 65915(e)(1).) It does not require a developer to request waiver of such standards.
7 HCD Letter of Technical Assistance to City of Oceanside dated January 10, 2023.
Attachment H: Public Comments Page 65
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Planning Division
July 18, 2026
sufficient substantial evidence, based on the geometry of the Project with respect to each development standard, and are not merely “conclusory assertions” as SNI suggests. Moreover, the City may only deny a waiver request on the basis that it will result in a “specific, adverse impact” on health or safety or a historical resource, or is contrary to state law. (Gov. Code § 65915(e)(1).) No such evidence exists in the record to support such findings, and SNI’s letter does not provide any.
SNI suggests the “driving rationale” for the waiver requests was not physical preclusion but “economics.” For support, SNI points to statements made by Applicant at a July 6, 2026 community meeting that the Project “would not pencil” if the waivers were not granted. It would be both novel and legally unfounded to deny a waiver based on statements made at a community meeting when 1) the record itself supports granting the waiver and 2) the statements do not provide a basis on which to deny the waiver request. It should be unsurprising that a development standard which physically precludes portions of the development, thereby shrinking unit sizes and reducing unit count, would also impact the development’s financial outlook. The DBL does not prohibit such downstream effects. To the contrary, it contains a legislative declaration that the intent of the DBL is to “cover at least some of the financing gap of affordable housing with regulatory incentives.” (Gov. Code § 65915(u)(1).) The only test for granting a waiver is whether the development standard precludes construction of the project as designed. Applicant has provided the City with sufficient substantial evidence, in the form of the DBL waiver requests and justifications, to support the City’s grant of the waivers, and it is clear that that City could not meet its burden under the DBL to deny any of the waiver requests.
Finally, SNI contends that the City must confront the fact that the Project is proposed at a lesser density than the maximum permitted at the Property. The legal implication of this fact is not clear. SNI seems to be suggesting that, because greater densities are permitted at the Property, Applicant can redesign the Project to better accommodate its unit count. But this is exactly what the courts in Schreiber and Bankers Hill 150 found that the DBL explicitly prohibits. SNI also argues that because the Project does not include bonus units, the waivers are not needed “to accommodate any additional density.” There is no such “additional density” standard in the DBL, and it is undisputed that a project which qualifies for the DBL by providing sufficient affordable units need not utilize a density bonus to take advantage of the DBL’s other rights and protections. (Gov. Code §§ 65915(e), (f); see also Department of Housing and Community Development Letter to Albert Yang, Assistant City Attorney (March 27, 2026), (“even if an applicant does not request a density bonus (i.e. elects a zero-percent bonus), the project is still eligible for waivers and concessions.”)) As the Lead Agency under CEQA, the City has correctly interpreted AB 130 and concluded, based on substantial evidence in the administrative record, that the Project is eligible for AB 130.
Moreover, substantial evidence supports the City’s grant of the requested DBL waivers. For the above reasons, the City should approve the Project as proposed.
Attachment H: Public Comments Page 66
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
Planning Division
July 18, 2026
Sincerely,
Zachary D. Rego
ZDR
Attachment A: Matrix Summarizing Results of Comprehensive Records Search for Cortese List Attachment H: Public Comments Page 67
ATTACHMENT A: Matrix Summarizing Results of Comprehensive Records Search 313 Gifford Avenue, San Jose NOT on Cortese List # Cal. Gov. Code Agency Site Type Reference Detailed Criteria Current Database (hyperlinks in footnotes) Site listed in Current
Database?
1 § 65962.5(a)(1) DTSC Hazardous waste facilities subject to corrective action (formerly "CALSites") Cal Health & Saf. Code, § 25187.5 Facilities where DTSC has taken or contracted for corrective action due to owner/operator failure to comply with corrective action orders, or where immediate action was necessary to abate imminent substantial danger to public health, livestock, wildlife, or environment EnviroStor Database - Very limited list (only 4 facilities currently listed).1 No 2 § 65962.5(a)(2) DTSC Land designated as hazardous waste property or border zone property Cal Health & Saf. Code, § 25220 (Former Article 11) Land designated as hazardous waste property or border zone property under former statutory provisions No facilities currently designated.1 No 3 § 65962.5(a)(3) DTSC Hazardous waste disposals on public land Cal Health & Saf. Code, § 25242 Information DTSC receives from a city, county, or state agency on hazardous waste disposals that occurred on public land DTSC's Emergency Respond Program does not currently keep records of such reports but is working on a mechanism to track these.1 N/A
4 § 65962.5(a)(4) DTSC
Sites listed under State Response/Superfund programs
Cal Health & Saf. Code, § 78760
(Article 5)
Sites listed under the State Response program (formerly Annual Workplan sites) and Federal Superfund sites requiring response action under hazardous substance release criteria DTSC's Hazardous Waste and Substances site "Cortese" list.2 No 5 § 65962.5(b) State DHS Public drinking water wells with detectable organic contaminants Cal Health & Saf. Code, § 116395 Public drinking water wells containing detectable levels of organic contaminants subject to analysis No current listings (program completed in 1988) N/A 6 § 65962.5(c)(1) SWRCB Underground storage tanks with unauthorized release reports Cal Health & Saf. Code, § 25295 Underground storage tanks where unauthorized release reports have been filed for releases escaping secondary containment, increasing fire/explosion hazard, or causing deterioration of secondary containment GeoTracker Database - Active reporting since 1996/1997
No
7 § 65962.5(c)(2) SWRCB Solid waste disposal facilities with hazardous waste migration Water Code, § 13273(e) Solid waste disposal facilities where regional water boards have determined hazardous waste has migrated into water and notified DTSC, excluding facilities where migration has been stopped List maintained by Water Board No
8 § 65962.5(c)(3) SWRCB
Sites with cease and desist orders or cleanup/abatement orders Water Code, §§ 13301 & 13304 Cease and desist orders issued after January 1, 1986 and cleanup/abatement orders issued after January 1, 1986 concerning discharge of hazardous materials (not including non-hazardous domestic sewage, food processing waste, or sediment) Water Board database (with caveat about nonhazardous orders) No 9 § 65962.5(d) Local Agency & CalRecycle Solid waste disposal facilities with known hazardous waste migration Cal. Code Regs., Tit. 14, § 18051 Solid waste disposal facilities with known migration of hazardous waste, compiled by local enforcement agencies and consolidated by CalRecycle This information is no longer reported to the Secretary by CalRecycle. Any solid waste disposal facilities with a known migration of hazardous waste should be included on the Cortese list pursuant to the requirements of Government Code Sections 65692.5(c)(2) and/or (c)(3) N/A
FN1 https://calepa.ca.gov/sitecleanup/corteselist/section-65962-5a/ FN2 https://www.envirostor.dtsc.ca.gov/public/search.asp?cmd=search&reporttype=CORTESE&site_type=CSITES,OPEN,FUDS,CLOSE&status=ACT,BKLG,COM&reporttitle=HAZARDOUS+WASTE+AND+SUBSTANCES+SITE+LIST FN3 https://calepa.ca.gov/sitecleanup/corteselist/section-65962-5b/ FN4 https://calepa.ca.gov/sitecleanup/corteselist/section-65962-5c/ FN5 https://calepa.ca.gov/wp-content/uploads/2016/10/SiteCleanup-CorteseList-CurrentList.pdf FN6 https://calepa.ca.gov/wp-content/uploads/2016/10/SiteCleanup-CorteseList-CDOCAOList.xlsx FN7 https://calepa.ca.gov/sitecleanup/corteselist/section-65962-5d/ Attachment H: Public Comments Page 68
Jul 21, 2026
City of San José
200 E. Santa Clara Street
San Jose, CA 95113
Re: Proposed Housing Development Project at 470 West Carlos Street To: [email protected]; [email protected]; CC: [email protected]; [email protected]; [email protected]; [email protected] Dear San Jose Planning Director and Staff,
The California Housing Defense Fund (CalHDF) submits this letter to remind the City of its obligation to abide by all relevant state laws when evaluating the proposed 276-unit housing development project at 470 West Carlos Street, which includes 14 very low-income units.
These laws include the Housing Accountability Act (HAA), the Density Bonus Law (DBL), and AB 130.
The HAA provides the project legal protections. It requires approval of zoning and general plan compliant housing development projects unless findings can be made regarding specific, objective, written health and safety hazards. (Gov. Code, § 65589.5, subd. (j).) The HAA also bars cities from imposing conditions on the approval of such projects that would reduce the project’s density unless, again, such written findings are made. (Ibid.) As a development with at least two-thirds of its area devoted to residential uses, the project falls within the HAA’s ambit, and it complies with local zoning code and the City’s general plan.
Increased density, concessions, and waivers that a project is entitled to under the DBL (Gov.
Code, § 65915) do not render the project noncompliant with the zoning code or general plan, for purposes of the HAA (Gov. Code, § 65589.5, subd. (j)(3)). The HAA’s protections therefore apply, and the City may not reject the project except based on health and safety standards, as outlined above. Furthermore, if the City rejects the project or impairs its feasibility, it must conduct “a thorough analysis of the economic, social, and environmental effects of the action.” (Id. at subd. (b).)
CalHDF also writes to emphasize that the DBL offers the proposed development certain protections. The City must respect these protections. In addition to granting the increase in 2201 Broadway, PH1, Oakland, CA 94612
www.calhdf.org
Attachment H: Public Comments Page 69
residential units allowed by the DBL, the City must not deny the project the proposed waivers and concessions with respect to stepback plane, skyline-level massing, balconies, ground-floor residential space, and podium-level massing. If the City wishes to deny requested waivers, Government Code section 65915, subdivision (e)(1) requires findings that the waivers would have a specific, adverse impact upon health or safety, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. If the City wishes to deny requested concessions, Government Code section 65915, subdivision (d)(1) requires findings that the concessions would not result in identifiable and actual cost reductions, that the concessions would have a specific, adverse impact on public health or safety, or that the concessions are contrary to state or federal law. The City, if it makes any such findings, bears the burden of proof. (Gov. Code, § 65915, subd. (d)(4).) Of note, the DBL specifically allows for a reduction in required accessory parking in addition to the allowable waivers and concessions. (Id. at subd. (p).) Additionally, the California Court of Appeal has ruled that when an applicant has requested one or more waivers and/or concessions pursuant to the DBL, the City “may not apply any development standard that would physically preclude construction of that project as designed, even if the building includes ‘amenities’ beyond the bare minimum of building components.” (Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App.5th 755, 775.)
Furthermore, the project is eligible for a statutory exemption from CEQA pursuant to AB 130. (Pub. Res. Code, § 21080.66.) Caselaw from the California Court of Appeal affirms that local governments err, and may be sued, when they improperly refuse to grant a project a CEQA exemption or streamlined CEQA review to which it is entitled. (Hilltop Group, Inc. v. County of San Diego (2024) 99 Cal.App.5th 890, 911.)
As you are well aware, California remains in the throes of a statewide crisis-level housing shortage. New housing such as this is a public benefit: by providing affordable housing, it will mitigate the state’s homelessness crisis; it will increase the city’s tax base; it will bring new customers to local businesses; and it will reduce displacement of existing residents by reducing competition for existing housing. It will also help cut down on transportation-related greenhouse gas emissions by providing housing in denser, more urban areas, as opposed to farther-flung regions in the state (and out of state). While no one project will solve the statewide housing crisis, the proposed development is a step in the right direction. CalHDF urges the City to approve it, consistent with its obligations under state law.
CalHDF is a 501(c)(3) non-profit corporation whose mission includes advocating for increased access to housing for Californians at all income levels, including low-income households. You may learn more about CalHDF at www.calhdf.org. 2 of 3
Attachment H: Public Comments Page 70
Sincerely,
Dylan Casey
CalHDF Executive Director
James M. Lloyd
CalHDF Director of Planning and Investigations
3 of 3
Attachment H: Public Comments Page 71
Jacqueline,
VTA appreciates the opportunity to review and provide comments on the application materials for the proposed project at 313 Gifford Ave in the city of San Jose, shared by City staff on April 10th , 2026.
Project Location and Land Use
VTA supports the proposed land use intensifications in the project area, located within 0.4 miles of Diridon Station, 0.3 miles of two VTA light rail stations, and within 500 feet of four different bus stops for VTA Frequent Bus Route 23. The addition of the 276 new residential units (310 du/acre) will significantly support transit ridership, and the residential land use will complement the area’s current mixed-land uses. VTA supports a mix of land uses that encourage a live-work-play activity center for San Jose that offers additional opportunities for residents and employees to incrementally reduce vehicle trips, and greenhouse gas emissions. We encourage the applicant to incorporate some mixed-use components into their project such as retail or publicly accessible co-working space, where feasible, to support this balance.
Transportation Demand Management (TDM) Plan
VTA commends the applicant for the inclusion of multiple TDM measures in their project.
Please consider referring to the TDM section of VTA’s CDT Manual for guidance and resources related to TDM measures, as well as VTA’s TDM Homepage. Specific resources for measures identified in this application include:
• For TP04: Education, Marketing, and Outreach. VTA has a Guaranteed Ride Home program and Vanpool program that the applicant is welcome to inform residents of. • For TP18: Voluntary Travel Behavior Change. Programs such as VTA Smart Commute Program could be an option to assist with trip planning.
Bicycle and Pedestrian Accommodations
With the addition of this development, the intersection of San Carlos and Gifford will see additional transit use along with increased activity from cars, pedestrians, and cyclists.
The street will not only see more use, it will also see more people living along it. VTA encourages the applicant and the City of San Jose work together towards additional safety improvements to this intersection to meet the safety needs of the residents and users to increase safety alongside density.
VTA commends the applicant for providing a new directional curb ramp crossing Gifford.
This best practice aligns with ADA guidance. VTA recommends the crosswalks across Gifford be upgraded to high-visibility crosswalks in the east-west direction on both sides of San Carlos.
Attachment H: Public Comments Page 72
VTA also appreciates the inclusion of a bicycle parking room on site. VTA recommends the door into the bicycle parking room include ADA-compliant kick plates on both sides so bicyclists can easily enter/exit the room while maneuvering their bikes. At minimum a space for an oversized bike should be provided in the room in the parking garage.
We also encourage the applicant to use best practices for bike room design and build out Community Design and Transportation Manual
VTA encourages the applicant to utilize the Community Design and Transportation (CDT) Manual to inform the project's design. The CDT guidelines provide strategies for shaping the built environment and parking layouts to promote pedestrian activity, support transit, and enhance community character.
Transportation Analysis
As stated in the Response to Public Works document, it appears that the project would not require a detailed CEQA Transportation Analysis, because the project is covered in the San Jose Downtown Strategy 2040 EIR. However, a Local Transportation Analysis (LTA) will be required. VTA staff would like to review the LTA when it becomes available.
Thank you again for the opportunity to review this project. If you have any questions, please do not hesitate to contact me, or the VTA Land Use and Development Review team at [email protected].
Best,
Douglas Kean
Transportation Planner II
Attachment H: Public Comments Page 73