Community Development Department
Planning Division
Planning Appeal Form
Instructions
Use this form to appeal a decision made at the Development Review Hearing or Planning Commission.
All appeals must be filed with the Planning Division within seven calendar days of the action being appealed.
Appeals from the Development Review Hearing are made to the Planning Commission (for single-family residential projects) or to the City Council (for projects other than single- family residential projects) and will be set for hearing on the next available agenda. Appeals from the Planning Commission are made to the City Council and will be placed on a subsequent City Council Agenda. Please contact the Planning Division at the number listed above with any inquiries about the process.
Applications will be filed through the City’s Permitting Online Portal . You will need to register for an account to file. Applications may also be filed in person at the Permit Center, City Hall, 1500 Warburton Avenue, Santa Clara.
Information submitted on this form is public record
Appeal Fees
Appeal Fees are set by the Municipal Code of the City of Santa Clara and are subject to annual review.
Submitted appeals will be invoiced by staff for payment. Fee payment must be received by the City of Santa Clara before this form submittal can be certified as complete.
Appellant Declaration
Name:
Street Address:
City, State, Zip Code:
Telephone Number:
E-mail Address:
In accordance with the provisions of the Municipal Code of the City of Santa Clara, I hereby appeal the following action at the:
☐ Development Review Hearing ☐ Planning Commission
(month/day/year) at its meeting of
Rev. (01/26) Page 1
Planning Appeal Form
Appellant Statement
(If more space is required, attach a separate sheets)
Action being appealed:
Reason for Appeal:
(If more space is required, attach a separate sheets)
Certification of Authenticity
Beware, you are subject to prosecution if you unlawfully submit this form. Under penalty of law, transmission of this form to the City of Santa Clara is your certification that you are authorized to submit it and that the information presented is authentic.
Signature of Appellant: Date:
Contact Information
Planning Division: 408-615-2450 | Email: [email protected] Rev. (01/26) Page 2
June 24, 2026
Submitted Via Online Permitting Portal
& via Email: [email protected]
Honorable Mayor Gillmor
Honorable City Councilmembers
City of Santa Clara
Permit Center, City Hall
1500 Warburton Ave
Santa Clara, CA 95050
Re: Appeal of Development Review Approval (June 17, 2026) (PLN24-00533) 860/858 Civic Center Drive and 1526 Alviso Street
Dear Mayor Gillmor and Honorable City Councilmembers,
On behalf of our clients, Mr. and Mrs. Fisher, we submit this appeal of the above referenced Development Review Officer approval for the City Council’s de novo review. 1 Our clients live adjacent to the proposed project and spent years working with City of Santa Clara (City) staff at great time and expense to restore their existing two-story (1935) Spanish Colonial Revival home and to develop the adjoining property in a complementary style to City staff’s liking. 2
By contrast, the mostly four-story proposed project at 860/858 Civic Center Drive and 1526 Alviso Street (Project) is devoid of any complementary architectural style or scale with the existing - and directly contiguous - residential homes and the developing neighborhood. Instead, the buildings reflect a generic modern boxy style apartment/ attached town-home design on oddly shaped (L) parcel(s) that require no less than 5 waivers and concessions from the City’s development standards.
The waivers and concessions are needed to exceed the maximum permitted height for Buildings 1 and 2, drastically reduce the minimum amount of commercial space and FAR otherwise required, and reduce the minimum setback requirements in the Mixed- Use Community Commercial (MU-CC) zone. Our clients and their neighbors are also
1 / See Zoning Code § 18.120.020, subd. (K)(3). As part of the appeal we also incorporate by reference, as if fully set forth herein, the arguments made in our letter dated June 17, 2026, to the Development Review Officer. (See Exhibit A.) 2 / More about their home may be found at: https://www.svvoice.com/spanish-colonial- revival-featured-home-in-santa-claras-historic-home-tour/ Andrea K. Leisy
[email protected]
Mayor Gillmor
Honorable City Councilmembers
City of Santa Clara
June 24, 2026
concerned that Buildings 2 and 3 of the Project may include balconies that would overlook the residential homes directly next to the Project.
While our clients recognize that the City may ultimately approve the Project they respectfully suggest that it would be prudent for the City Council to first require the applicant to provide actual substantial evidence supporting the Project’s alleged compliance with the Planning and Zoning Law/Density Bonus Law and the California Environmental Quality Act (CEQA), as explained below, and to revise the design with input from the community to ensure consistency and the ability of the City to defensibly rely on the proposed exemption from having to conduct environmental review under CEQA.
Our clients therefore request that the City Council grant the appeal and direct staff and the applicant to work with residents in good faith and, specifically, to revise the Project design to:
• Reflect architectural features that are consistent with the Spanish Colonial Revival era or, at the very least, truly consistent with modern Spanish architecture;
• Consider height reductions (or at least explain why, with economic evidence, that the height exceedances are necessary to ensure the Project’s fiscal viability);
• Expressly prohibit the inclusion of balconies that would overlook existing residential homes in the conditions of approval; and
• Incorporate Multi-Story Step-backs (minimum six feet) on all elevations of the structure and on no less than 60 percent of the first story structure wall length as required by Zoning Code, § 18.14.040(F), among other “asks” previously made but dismissed by the applicant.
I. Substantial Evidence does not support a finding that the Project is consistent with the General Plan or Zoning Code as required by CEQA (AB 130) .
The Project applicant proposes two four story (44’) buildings with 16 total market rate townhomes and 2 affordable housing units - proposed as very small 521 square foot accessory dwelling units (ADUs). The Project proposes to reduce the front and rear setbacks to 2’-9” and 4’-11” respectfully and exceed the height limitations without providing any step-backs for multi-story buildings.
A. Relevant General Plan Goals and Policies.
A prerequisite to reliance on the statutory exemption from CEQA provided by Public Resources Code section 21080.66 (AB 130) requires a public agency to ensure that substantial evidence supports a finding that a project is consistent with the applicable general plan and zoning ordinance. (§ 21080.66, subd. (a)(1)(4)(A) [a housing Mayor Gillmor
Honorable City Councilmembers
City of Santa Clara
June 24, 2026
development project shall be deemed consistent “if there is substantial evidence that would allow a reasonable person to conclude that the housing development project is consistent”], emphasis added.) 3 The record for the Project falls short of this mandate.
Specifically, to date, there is no discussion, analysis or other “substantial evidence” in the record explaining how the Project is consistent with the applicable General Plan goals and policies or zoning. There are, merely, conclusory statements offered by staff and the applicant that the Project is consistent with the General Plan or does not need to be consistent because of the Density Bonus Law provisions. CEQA requires more. As proposed, a reasonable person may not conclude that the Project is consistent with the following relevant General Plan goals and policies as required by the exemption, including:
El Camino Real Focus Area Goals
5.4.1‐G2 High quality design that respects the scale and character of adjacent residential neighborhoods and historic resources and creates a walkable environment.
El Camino Real Focus Area Policies
5.4.1‐P5 Provide appropriate transition between new development in the Focus Area and adjacent uses consistent with General Plan Transition Policies.
5.4.1‐P6 Encourage lower profile development, in areas designated for Community Mixed Use in order to minimize land use conflicts with existing neighborhoods.
5.4.1‐P12 Highly encourage the development of affordable housing and senior housing that is well designed and compatible with adjacent uses in the El Camino Real Focus Area.
5.5.2 Transition Goals and Policies
Transition policies are applicable to sites where new development is of a different land use classification and/or intensity to that of adjacent neighborhoods. Transition Policies are intended to address compatibility between existing and new development and may be applied in order to . . . :
Adjust building height, scale and massing along the site perimeter abutting lower‐intensity uses. For example, a multi‐story commercial building could be taller
3 / “Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.” (CEQA Guidelines, § 15384, subd. (b).) Mayor Gillmor
Honorable City Councilmembers
City of Santa Clara
June 24, 2026
along the street frontage, and shorter near the portion of the site that abuts a residential parcel, as illustrated in Figure 5.5‐1 of the General Plan.
(See GP, p. 5-73)
Transition Goals
5.5.2‐G1 High quality, enjoyable and livable neighborhoods.
5.5.2‐G2 Preservation of the character of individual neighborhoods.
5.5.2‐G3 New development that is compatible with adjacent existing and planned residential neighborhoods.
Transition Policies
5.5.2‐P1 Require that new development incorporate building articulation and architectural features, including front doors, windows, stoops, porches or bay windows along street frontages, to integrate new development into existing neighborhoods.
5.5.2‐P5 Require that new development provide an appropriate transition to surrounding Neighborhoods.
5.5.2‐P6 Adjust new building height, scale and massing along the site perimeter abutting planned lower‐ intensity uses.
5.5.2‐P7 For buildings of three stories or greater, increase the setback of upper stories where they abut lower‐intensity residential uses.
Due to seismic and liquefaction risks within the City, the General Plan also requires a geotechnical investigation before a development permit can be granted in the liquefaction zone (which this Project appears located). Specifically, the General Plan requires that a geotechnical investigation of the site must be conducted and appropriate measures, such as edge containment structures, driving piles or treatment of soils, incorporated into the project design. (GP, p. 5-128.) It does not appear that the Project applicant has completed a geotechnical investigation and, if not, it must do so before finding the Project consistent with the mandatory and specific language within the General Plan.
The CEQA exemption (AB 130) also requires the City to include, as a condition
of approval for the Project, that the applicant complete a phase I environmental assessment per Health and Safety Code section 78090 and take the specific steps enumerated in the statue if a recognized environmental condition is found and before a certificate of occupancy may issue. (Pub. Resources Code, § 21080.66, subd. (c)(1)(A)- Mayor Gillmor
Honorable City Councilmembers
City of Santa Clara
June 24, 2026
(D).) The conditions of approval adopted by the Design Review Officer omit this requirement, despite the Project site being used as an autobody repair shop. The conditions must be revised and substantial evidence provided before the City may legally rely on the proposed CEQA exemption.
B. Relevant Zoning Code provisions.
To find consistency with the zoning code as required by AB 130 (CEQA), the applicant must also incorporate a minimum step-back of six feet for all structures greater than three stories. (Zoning Code, § 18.14.040, subd. (F); see also, Figures 2-3 and 2-4.) This requirement is to break up the vertical, flat wall of a multi-story building, adding visual texture and separating different levels of a façade. The Project design must therefore be revised to reflect this mandatory requirement and to incorporate design features that are to scale and complementary with the existing adjacent residential uses.
Absent such effort, the Project remains inconsistent with the Zoning Code and ineligible for the CEQA exemption.
II. The Project is inconsistent with the April 2026 El Camino Real Specific Plan.
As noted above, the Project site, as well as our clients’ property, is located within the north side of the El Camino Real Focus Area identified in the General Plan and the Draft (April 2026) El Camino Real Specific Plan as shown below. (See Figure 5.4-2 [General Plan]; Figure 1-2 [Specific Plan].)
Mayor Gillmor
Honorable City Councilmembers
City of Santa Clara
June 24, 2026
As a policy matter, the City’s updated Adoption Draft (April 2026) El Camino Real Specific Plan also does not support the proposed Project as currently designed. As demonstrated by Table 4-3, below, the City proposes to be more fully protective of existing single family homes, where no portion of the building volume shall encroach into daylight plane starting six feet above grade at the property line and sloping upward at a 30 degree angle toward the interior of the lot.
In the past, when the sigle family homes were constructed, design standards would not allow the proposed Project. And in the future it looks like it will be the case per the Adopted Draft – April 2026 El Camino Real Specific Plan. Specifically, that this Project would not be allowed under the Specific Plan. So, why would the City approve a Project that would substantially hurt the character of the neighborhood and Santa Clara in the interim between these two standards? It is not right and the Council should not approve as currently proposed and our “asks” should be genuinly considered by the developer.
III. The applicant has not shown that the requested waivers and concessions are necessary to make the housing development economically feasible.
The Project as designed requires at least five waivers and two concessions from the City’s development standards as set forth in Table 2-12 of the zoning code. (Development Review Staff Report, Attachment 2.) The waivers include those needed to reduce the front and rear setbacks of Buildings 1 and 2, to increase the 40-foot height limitation to 44 feet for Buildings 1 and 2, and concessions to reduce the required commercial square footage and commercial floor area ratio (FAR) for Building 3. (See
Mayor Gillmor
Honorable City Councilmembers
City of Santa Clara
June 24, 2026
Development Review Staff Report Attachment 2: Project Data/Compliance (Mixed- Use).)
Although unexplained in a staff report or other document made publicly available before the Development Review hearing, the waivers and concessions requested by the applicant are pursuant to Chapter 18.64 (Density Bonus and Affordable Housing) of the zoning code and the State Planning and Zoning Law (Gov. Code, § 65915.) Those provisions, however, require substantial evidence that the:
waiver or reduction is necessary to make the housing development economically feasible , and that without the waiver the development standards would physically preclude the construction of the development that meets all other legal requirements . . .
(Zoning Code 18.64.120, subds. (A), emphasis added.)
In other words, the concessions and incentives sought by an applicant must corollate to actual cost reductions that result in the ability to provide for affordable housing and the costs associate with the affordable housing units included in a project. (See also, Gov. Code, § 65915, subd. (d)(1)(A) [City may deny a requested concession or incentive if the city makes a written finding, based on substantial evidence, that the
concession or incentive does not result in identifiable and actual cost reductions to provide for affordable housing costs ]; see also, Zoning Code, § 18.64.040, subd. (A)(1)(a) [“The Council shall grant an incentive or concession request . . . unless the Council . . . finds . . . [t]he incentive or concession does not result in identifiable and
actual cost reductions to provide for affordable housing costs[]”].) The City Council therefore has discretion to grant the appeal and require the applicant to provide the actual cost of the 1 bedroom/1 bath ADUs and how the waivers and concessions requested are needed to cover the ADU costs.
When asked what substantial evidence exists in the record to support the requested concessions and waivers, staff provided only a two-page conclusory “Density Bonus Supplemental Form” (Form) that was submitted to the Community Development Department by the applicant with the Project application. There is no explanation or
economic information provided by the applicant in response to the questions as required to support the requested waivers and concessions.
The only statements offered by the applicant in the Form are conclusory and lack any supporting evidence. (See Exhibit B, [Density Bonus Supplemental Form], p. 2 [asking for description of how each requested concession or incentive would result in identifiable and actual cost reductions for the project] and, for waivers, [describe how each requested waiver is necessary to allow the proposed project to accommodate the additional permitted density].) The Form alone is legally insufficient.
Mayor Gillmor
Honorable City Councilmembers
City of Santa Clara
June 24, 2026
Because there is no such explanation or evidence included with the Form or elsewhere in the record (that we are aware), our client requests that the appeal be granted and the applicant be required to prove the need for the waivers and (commercial) concessions to provide for the affordable ADUs with substantial evidence.
IV. The Findings required to approve the Project are also not supported by substantial evidence.
Staff claims that the required Architectural Review findings can be made for the Project as designed. (See Agenda Report (June 17, 2026), pp. 3-4 (Staff Report); see also Zoning Code, § 18.120.020, subd. (F)(1)-(5).) Our clients respectfully disagree.
Specifically, finding 2 (that the development will not unreasonably interfere with the use and enjoyment of neighboring developments) and Finding 3 (that the design is in keeping with the character of the neighborhood and not detrimental to the harmonious development contemplated by the Zoning Code and General Plan) - are not supported by evidence. The Project will, in fact, unreasonably interfere with the use and enjoyment of the existing residences (finding 2) by blocking sunlight and reducing buffer/setback areas. The Project design (finding 3) is also not at all in keeping with the scale and character of the existing Spanish Colonial Revival homes and harmonious neighborhood motif as previously required by staff of our client’s project and as required by the General Plan policies noted above.
4 V. The Appeal should be granted and the Project revised.
Because substantial evidence does not support the Development Review Hearing Officer’s approval, our clients request that the City Council grant the appeal and require the applicant and staff to meet and confer with our clients on the following revisions to the Project and/or project conditions of approval:
(i) Reductions in the height and scale of Buildings 1 and 2 to three stories or, at the very least, requiring six foot step-backs if they remain four stories as required by section 18.14.040, subd. F of the zoning code. (See also, Figures 2-3 and 2-4.) Our clients propose that 2 to 3 stories is sufficient to accommodate the Project and ensure its fiscal viability;
4 The Staff Report (p. 4) claims the project reflects “contemporary Spanish architectural design” without any explanation or support. In our brief search, contemporary Spanish attached townhomes are generally three stories and look more like Melia Homes project in Anaheim: https://meliahomes.com/new-homes/ca/anaheim/townes-at-orange/#photo- gallery or the West Beach townhomes in Santa Barbara at:
https://www.cearnal.com/multi-family-housing/west-beach-townhomes Mayor Gillmor
Honorable City Councilmembers
City of Santa Clara
June 24, 2026
(ii) Revisions to the multi-family building design to reflect the characteristics of the existing neighboring residences and buildings, including the use of wood trim windows and arches, including arched doors and windows rather than the modernistic glass box apartment style buildings proposed;
(iii) Clarifying the conditions of approval to prohibit balconies that could be directly adjacent to existing residential uses on Civic Center Drive and Alviso Street, including residential uses that would be divided by masonry fences;
(iv) Require all setbacks of the Project to comply with existing MUCC zone requirements in Table 2-12 of the zoning code to buffer existing residential uses, rather than granting waivers; and
(v) Clarify the conditions of approval to restrict use of the commercial space to specific types of meetings by the public and HOA only, consistent with the applicant’s development plans.
Thank you in advance for your consideration of our clients’ comments and concerns. Please provide me with email notice of all future public hearing notices and notices issued for the Project, including any notices of exemption (NOE) filed pursuant to CEQA and public hearing agenda notices under the Brown Act.
Very truly yours,
Andrea K. Leisy
Encl. Exhibit A – June 17, 2026 Comment Letter
Exhibit B – Density Bonus Supplemental Form
Cc: Michael Fisher
ATTACHMENT A
June 17, 2026
Via Email Only
[email protected]
[email protected]
Sheldon Ah Sing
Development Review Officer
City of Santa Clara
1500 Warburton Ave
Santa Clara, CA 95050
Re: Development Review Hearing - Agenda Item 4 (June 17, 2026) (PLN24-00533) 860/858 Civic Center Drive and 1526 Alviso Street
Dear Mr. Ah Sing,
We submit this letter on behalf of our clients, Mr. and Mrs. Fisher, who reside near the above-referenced proposed project and who worked for years with City of Santa Clara (City) staff to restore their existing two story Spanish Colonial Revival home, originally built in 1935, and to develop the adjoining property in a complementary style at the City’s request.
1 Now, ten years later, the City appears poised to approve the above referenced project at 860/858 Civic Center Drive and 1526 Alviso Street (the Project) despite it being devoid of any complementary architectural style or scale with the existing developing neighborhood. Our clients therefore request that, after considering these comments, you decline to approve the Project and instead direct staff and the applicant to work in good faith with our client and neighbors to address their concerns.
I. Pursuant to the Ralph M. Brown Act (Brown Act) , the hearing must be postponed and the agenda revised to include the City’s proposed CEQA exemption as an “item of business.”
In addition to approving the architectural review, the meeting agenda recommends that the Project be found exempt from any environmental review otherwise required under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) and pursuant to AB 130. The characterization of AB 130 as the exemption, however, does not notify the public of the specific statutory or categorical
1 / More about their home may be found at: https://www.svvoice.com/spanish-colonial- revival-featured-home-in-santa-claras-historic-home-tour/ Andrea K. Leisy
[email protected]
Sheldon Ah Sing
Development Review Officer
June 17, 2026
exemption the City proposes to rely on under CEQA for the Project approval. The Meeting Agenda therefore makes it impossible for a layperson to identify whether the proposed CEQA exemption is, in fact, appropriate for the proposed Project to exhaust all administrative remedies that might otherwise be required under CEQA and for the City to comply with the Brown Act. 2
The Brown Act requires a public agency’s posted agenda to include a description of each item of business to be considered at a legislative body’s meeting at least 72-hours prior to the meeting. (Gov. Code, § 54954.2, subd. (a)(1).) This requirement applies unless the legislative body makes certain determinations, none of which exist here. (See Id., § 54954.2, subd. (b).) The Brown Act states that “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda....” (See § 54954.2, subd. (a)(2).) In adopting the Brown Act, the Legislature declared that:
[T]he public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
(Gov. Code, § 54950.)
3 The City’s Meeting Agenda for June 17th does not meet the Brown Act’s requirements. It must be revised to include the specific CEQA exemption the City proposes to rely on in approving the Project and the record must reflect substantial evidence supporting reliance on the exemption prior to considering approval of the Project.
If, for example, the City intends to rely on the statutory exemption provided by Public Resources Code section 21080.66, which the reference to AB 130 presumably refers to, substantial evidence must be provided in the record that all the requirements of
2 See Attachment A, Court of Appeal opinion in the matter of G.I. Industries v. City of Thousand Oaks finding the city violated the Brown Act by omitting, from the public hearing agenda, the specific CEQA exemptions proposed to be relied on by the city council for a project.
3 See also San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167 [finding county violated the Brown Act by considering and adopting a mitigated negative declaration (MND) for a project subject to CEQA without first expressly including the item in the posted agenda for the Planning Commission as an individual item of business].
Sheldon Ah Sing
Development Review Officer
June 17, 2026
that exemption have been met. This includes ensuring that formal notice has been provided to all California Native American tribes that are traditionally and culturally affiliated with the project site, among other requirements. The materials provided for the meeting on Wednesday fall short of these mandates if, in fact, that is the exemption the City proposes. Again, the Meeting Agenda must be clarified to specify the precise exemption.
For private projects, as here, a public agency must comply with CEQA for the “whole of the action,” or Project, at the earliest discretionary approval. The proposed approval of the architectural review and adoption of a proposed Notice of Exemption (NOE), as here, triggers the need for the City to ensure compliance with CEQA for all of the proposed Project entitlements and approvals, including the tentative map, and tree removal permit. (See Pub. Resources Code, §§ 21065, 21159.27; CEQA Guidelines, § 15352.)
II. The Project is inconsistent with the City’s zoning code.
A. Substantial evidence supporting waiver of development standards is lacking.
The Project applicant proposes two four story (44’ tall) buildings with 14 market rate townhomes and one three story building (Building 3) consisting of 2 affordable units and proposed as accessory dwelling units (ADUs). The Project applicant requests several waivers from applicable development standards set forth in Table 2-12 of the zoning code. The waivers include those needed to reduce the front and rear setbacks of Buildings 1 and 2, to increase the 40-foot height limitation to 44 feet for Buildings 1 and 2, and to reduce the required commercial square footage and commercial floor area ratio (FAR) for Building 3. (See Attachment 2: Project Data/Compliance (Mixed-Use) prepared by staff.)
Although unexplained in a staff report or other document made publicly available for the hearing, it appears the waivers requested by the applicant may be pursuant to Chapter 18.64 (Density Bonus and Affordable Housing) of the zoning code. That section, however, requires substantial evidence that the:
waiver or reduction
is necessary to make the housing development
economically feasible, and that without the waiver the development standards would physically preclude the construction of the development that meets all other legal requirements . . .
(Zoning Code 18.64.120, subds. (A), emphasis added.)
What substantial evidence has been provided by the applicant to support the requested waivers? Where is the explanation of how/why this Project is eligible for the Density Bonus Law, if it is? Our client requests answers to these questions and that a Sheldon Ah Sing
Development Review Officer
June 17, 2026
copy of any substantial evidence supporting the waiver requests be made publicly available.
If there is no such explanation or evidence, our client requests that the Project as proposed be denied. (See § 18.64.040, subd. (A)(1)(a) [“The Council shall grant an incentive or concession request . . . unless the Council . . . finds . . . [t]he incentive or concession
does not result in identifiable and actual cost reductions to provide for affordable housing costs[]”].)
B. The Project design is inconsistent with the zoning code and adjacent residential uses.
The zoning code requires a minimum step-back of six feet for all structures greater than three stories. (§ 18.14.040, subd. (F); see also, Figures 2-3 and 2-4.) This requirement is to break up the vertical, flat wall of a multi-story building, adding visual texture and separating different levels of a façade. As requested below, the Project design should be revised to reflect this mandatory requirement and to incorporate design features that are to scale and complementary with the existing adjacent residential uses.
III. The Project should be re vised.
Our clients request a good-faith meeting with the applicant to discuss the following revisions to the Project and/or project conditions of approval:
(i) Reductions in the height and scale of Buildings 1 and 2 to three stories or, at the very least, requiring six foot step-backs if they remain four stories as required by section 18.14.040, subd. F of the zoning code. (See also, Figures 2-3 and 2-4.) Our clients propose that 2 to 3 stories is sufficient to accommodate the Project and ensure its fiscal viability;
(ii) Revisions to the multi-family building design to reflect the characteristics of the existing neighboring residences and buildings, including the use of wood trim windows and arches, including arched doors and windows rather than the modernistic glass box buildings proposed. The proposed buildings appear more suited for downtown Los Angeles rather than the City of Santa Clara;
(iii) Clarifying the conditions of approval to prohibit balconies that could be directly adjacent to existing residential uses on Civic Center Drive and Alviso Street, including residential uses that would be divided by masonry fences;
(iv) Require all setbacks of the Project to comply with existing MUCC zone requirements in Table 2-12 of the zoning code to buffer existing residential uses, rather than granting waivers; and
Sheldon Ah Sing
Development Review Officer
June 17, 2026
(v
) Clarify the conditions of approval to restrict use of the commercial space for meetings by the public and HOA only, consistent with the applicant’s development plans.
T
hank you in advance for your consideration of our clients’ comments and concerns. Please provide me with email notice of all future public hearing notices and notices issued for the Project, including any notices of exemption (NOE) or notices of determination (NOD) filed pursuant to CEQA and notices under the Brown Act.
Ve
ry truly yours,
A
ndrea K. Leisy
E
ncl. Attachment A
Cc
: Michael Fisher
City Clerk
ATTACHMENT A
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
G.I. INDUSTRIES,
Plaintiff and Appellant,
v.
CITY OF THOUSAND OAKS
et al.,
Defendant and Respondent;
ARAKELIAN ENTERPRISES,
INC.,
Real Party in Interest.
2d Civ. No. B337103
(Super. Ct. No. 56-2021-
00554581-CU-WM-VTA)
(Ventura County)
A city violated the Brown Act (Gov. Code, 1 § 54950 et seq.).
It found that a franchise agreement is exempt from the California Environmental Quality Act (CEQA) (Pub. Res. Code, § 21000 et
1 All statutory references are to the Government Code
unless stated otherwise.
&28572)$33($/²6(&21'',67
(9$0F&/,172&., Clerk
Deputy Clerk
Aug 05, 2025
S. Claborn
2 seq.). But it did not give adequate public notice. The trial court found that under an exception in the Brown Act, the city’s action is not null and void, and that the Brown Act violation was not prejudicial. We reverse on both grounds and conclude the city’s action, finding the franchise agreement exempt from CEQA, is null and void.
FACTS
G.I. Industries, doing business as Waste Management
(WM), provided solid waste management for the City of Thousand Oaks (City).
The City was considering entering into a new exclusive
solid waste franchise agreement with Arakelian Enterprises, Inc., doing business as Athens Services (Athens). The franchise agreement was for a 15-year term beginning January 1, 2022, and ending December 31, 2036 (the franchise agreement).
On March 4, 2021, the City post ed an agenda for a regular meeting of the City council to be held on March 9, 2021. An item on the agenda stated that the City would consider awarding the franchise agreement to Athens, along with a note that the City’s staff recommended approval. One item that was not listed on the City’s agenda was that the City would also consider whether the franchise agreement is exempt from CEQA. Nor did the agenda include the City staff’s recommendation that the City find the franchise agreement to be categorically exempt.
On March 5, 2021, WM submitted a comment letter to the
City raising WM’s concern that the City had not considered potentially adverse environmental impacts if the new franchise agreement were approved.
It was not until 3:30 p.m. on March 9, 2021, the day of the City council meeting, that a supplemental item was posted giving 3 notice of the staff’s recommendation that the City find the franchise agreement to be exempt from CEQA. The posting included a supplemental information packet with the City staff’s recommendation for the exemptions. The staff found the franchise award to be categorically exempt pursuant to the Code of Regulations, title 14, section 15000 et seq. under the “existing facilities” and “actions by regulatory agencies for the protection of the environment” exemptions. (Id., §§ 15301, 15308.) The staff also found the franchise agreement exempt under the so-called “common sense” exemption. (Id., § 15061, subd. (b)(3).) At the March 9, 2021, City council meeting, the City
approved the franchise agreement and found it was exempt from CEQA. On April 8, 2021, WM sent the City a “cure or correct” letter pursuant to section 54960.1, subdivision (b), objecting to the CEQA exemption decision without 72 hours’ notice as required by section 54954.2 of the Brown Act. The City elected not to cure or correct the challenged action.
Petition for Writ of Mandate
WM petitioned the trial court for a writ of mandate
directing the City to vacate both its approval of the franchise agreement and its finding that it is exempt from CEQA. Athens was joined as the real party in interest. The petition alleged that the City violated section 54954.2 of the Brown Act by voting to adopt the CEQA exemptions as an agenda item at least 72 hours prior to the City council meeting.
The City and Athens demurred to the complaint. The trial court sustained the demurrer without leave to amend. The court agreed with WM that the CEQA exemption is an item of business separate from approval of the franchise agreement. The court however, also concluded, that because CEQA does not require a 4 public hearing for an exemption determination, the Brown Act does not apply.
First Appeal
On WM’s first appeal, we reversed the judgment. We held that WM’s petition alleged facts sufficient to show the City violated the Brown Act, section 54954.2, subdivision (a)(1) by considering a CEQA exemption without a 72-hour agenda notice.
We also held that WM’s “cure and correct” letter substantially complied with section 54960.1, subdivision (b), requiring a demand that a legislative body cure and correct an alleged violation, prior to commencing an action. (G.I. Industries v. City of Thousand Oaks et al. (Oct. 26, 2022, B317201) opn. ordered nonpub. Feb. 15, 2023.)
Trial Court Ruling on Remand
The trial court again denied WM’s petition. The court
found that the City violated the Brown Act, but section 54960.1, subdivision (d)(3) provides an exception to nullification for actions that give rise to contracts on which a party detrimentally relied; and WM failed to show prejudice because WM and others were permitted to submit comments about the CEQA exemption and those comments were understood and considered by the City.
DISCUSSION
I. The Brown Act
The Brown Act begins with a declaration of purpose: “In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the People’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.” (§ 54950.)
5 To effectuate this purpose, section 54954.2, subdivision (a)(1) provides in part: “At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.” The public has the right to address the local agency.
Section 54954.3, subdivision (a) provides in part: “Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda. . . .” Any interested person may petition the trial court for the purpose of obtaining a judicial determination that an act taken in violation of section 54954.2 is null and void. (§ 54960.1, subd. (a).)
The Brown Act is supported by the California Constitution.
Article I, section 3, subdivision (b), paragraphs (1) and (2) of the California Constitution provide in part:
“(1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and writing of public officials and agencies shall be open to public scrutiny.
“(2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”
6 II. Exception to Null and Void Declaration
The trial court found the City violated section 54954.2, subdivision (a) of the Brown Act by failing to post an agenda item at least 72 hours prior to the meeting at which the CEQA exemption was found.
Ordinarily such a violation would require the trial court to declare the City’s action null and void. (§ 54960.1, subd. (a).) But the court cited an exception to the null and void requirement.
Section 54960.1, subdivision (d)(3) provides that an action of a local agency shall not be declared null and void if: “The action taken gave rise to a contractual obligation, including a contract let by competitive bid . . . upon which a party has, in good faith and without notice of a challenge to the validity of the action, detrimentally relied.”
The trial court found that the exception applied, stating:
“Athens and City were contractually obliged to undertake significant tasks in order to transition waste hauling services performed by WM under the prior contract to the same services to be performed by Athens under the [franchise agreement]. A significant number of these substantial efforts occurred before April 8, 2021 [date of cure or correct letter].”
But at the March 9, 2021, City council meeting at which the CEQA exemption was passed, at least one speaker gave notice of the Brown Act violation, complete with citation to appropriate authority. The speaker said: “The City [council] should not take action to award the [franchise] agreement tonight. The Brown Act requires the City to include in its agenda the City’s proposed CEQA action prior to approving the award. [¶] In a 2013 published case entitled San Joaquin Raptor Rescue Center v. County of Merced, available at 216 Cal.App.4th 1167 7 [Merced County] was found to have violated the Brown Act for failing to include consideration of a mitigated, negative declaration as part of its public agenda. [¶] The [council’s] poised to make the same unfortunate mistake here tonight if it takes action rather than vote to continue the item.”
The City and Athens had ample notice of the precise Brown Act violation at issue here before any work had been performed in reliance on the franchise agreement. The speaker’s statement gave “notice of a challenge to the validity of the action.” (§ 54960.1, subd. (d)(3).) In fact, the speaker’s statement was itself a challenge to the validity of the action.
Moreover, WM points out that section 54960.1, subdivision (c)(1) gives a challenger 30 days in which to make a written cure and correct demand, but the trial court’s ruling rendered the statutory period for challenging the City’s action meaningless.
Athens knew or should have known a challenge could have been made at any time during the 30-day period. Athens cannot reasonably rely on any work performed prior to the expiration of that period. Accordingly, the exception under section 54960.1 does not apply.
III. Prejudice
WM contends the trial court erred in finding the City’s Brown Act violation was not prejudicial.
Here the City placed the CEQA exemption on its meeting
agenda two and one-half hours before the meeting. For all practical purposes, that is no notice. The trial court acknowledged that one speaker requested the CEQA matter be continued. The obvious purpose for the continuance was to give speakers an opportunity to respond to the staff’s CEQA
exemption recommendation. WM was also denied the
8 opportunity to speak at the meeting. WM claims it has additional information relevant to the CEQA exemption that it was prevented from presenting because of lack of notice. WM is likely the party most knowledgeable about solid waste operations within the City. What information other potential speakers might have presented had they been given notice is unknown. The problem with basing an analysis of prejudice on information the City had is that it is impossible to tell what opposing information the City might have had if notice had been given.
The Brown Act is intended to promote the important
policies of transparency in government and public participation.
Lack of prejudice should not be easily found.
In Fowler v. City of Lafayette (2020) 46 Cal.App.5th 360 (Fowler), property owners applied to the city for a permit to construct what they described as a “tennis cabaña” on their property. (Id. at p. 364.) Neighbors objected. The city’s planning commission considered the matter at four meetings prior to approving the project. The neighbors appealed to the city council.
The city council considered the matter at four additional meetings. While the appeal was pending before the city council the applicants’ attorney threatened the city with litigation if it did not approve the project. The city considered the threat of litigation in closed sessions without proper agenda notice. The neighbors were unaware of the closed session meetings until after the project was approved. The neighbors brought an action to nullify the approval on the ground that the closed sessions were not on the city council’s agenda. The Court of Appeal held the Brown Act violations harmless. The court pointed out that the action the neighbors sought to nullify was the approval, not the closed sessions. The project application was considered at four 9 open meetings at which it was extensively discussed. The court concluded there was no reasonable argument that the neighbors lacked a fair opportunity to present their case. (Id. at p. 372.) Fowler states the proper standard for determining
prejudice: whether members of the public had a fair opportunity to present their case. (Fowler, supra, 46 Cal.App.5th at p. 372.) The standard reflects the purposes of the Brown Act. WM and other members of the public did not have an opportunity to present their case due to lack of notice. Unlike Fowler, there was no other public meeting at which the CEQA exemption was discussed. In focusing on the information the City had, instead of whether members of the public had a fair opportunity to present their case, the trial court applied the wrong standard.
The trial court placed much emphasis on a letter WM sent to the City council prior to the meeting anticipating that the City would rely on one or more CEQA exemptions. But the Brown Act requires adequate notice and an opportunity to be heard, not only by the City council, but by the public. A letter sent to the City council is not an adequate substitute. The Brown Act requires the opportunity to speak at a public meeting.
The City points out that CEQA does not require a public hearing for a determination that a project is exempt. (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139
Cal.App.4th 1356, 1385.) But the Brown Act as applied to a CEQA exemption decision does not require a formal public hearing where the findings must be supported by substantial evidence. All the Brown Act requires is, before formal action is taken on it, the exemption be placed on the meeting agenda and an opportunity for the public to comment.
10 Here the City’s violation of the Brown Act is not harmless.
Accordingly, the City’s action in finding the franchise agreement exempt from CEQA is null and void.
IV. Attorney Fees
WM contends it is entitled to attorney fees as the
prevailing party.
Section 54960.5 provides in part: “A court may award court costs and reasonable attorney fees to the plaintiff in an action brought pursuant to Section . . . 54960.1 . . . where it is found that a legislative body of the local agency has violated this chapter.”
WM acknowledges that section 54960.5 provides the court “may” award attorney fees. It cites Los Angeles Times
Communications v. Los Angeles County Board of Supervisors (2003) 112 Cal.App.4th 1313, 1327, for the proposition that attorney fees and costs can be denied “only if the defendant shows that special circumstances exist that would make such an award unjust.” Nevertheless, the most appropriate resolution is to remand the matter to the trial court so that it can decide the issue of attorney fees.
DISPOSITION
The Brown Act requires notice and an opportunity for the public to speak on issues before the City council. The City council shall place the CEQA exemption on its agenda with proper notice and allow the public to voice its opinion.
Whatever action the City council takes thereafter, we leave to its discretion. We trust it will not result in further Brown Act issues.
11 The judgment is reversed and remanded to the trial court to decide whether attorney fees are appropriate.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
BALTODANO, J.
CODY, J.
Matthew P. Guasco, Judge
Superior Court County of Ventura
______________________________
Remy Moose Manley, James G. Moose, Andrea K. Leisy and
Nathan O. George; Law Offices of Joel Franklin, Joel Franklin, for Plaintiff and Appellant.
Colantuono, Highsmith & Whatley, Holly O. Whatley and
Carmen A. Brock, for Defendants and Respondents.
Mannatt, Phelps & Phillips, Benjamin G. Shatz, Viral
Mehta, Sigrid R. Waggener, and Jennifer Lynch, for Real Party in Interest.
ATTACHMENT B
Community Development Department
Planning Division
Density Bonus Supplemental Form
When using density bonus law ( Chapter 18.64 of the Santa Clara City Code and/or California Government Code Sections 65915 – 65918), you shall submit this supplemental form in conjunction with your development application.
I. Project Information
Project Address:
Project Description:
Question Number
Baseline Density. Maximum allowed number of units at the subject property:
Proposed number of restricted affordable units for very-low-income (up to 50% AMI) households:
Proposed number of restricted affordable units for lower-income (51 – 80% AMI) households:
Proposed number of restricted affordable units for moderate income (81 – 120% AMI) households:
Proposed number of senior citizen housing units:
Proposed number of moderate-income households in a common interest development:
Proposed number of restricted affordable units for Transitional Foster Youth, Disabled Veterans, or Homeless Persons:
Proposed number of restricted affordable units for Lower Income Students in a student housing development:
Proposed number or condominium conversions where at least 33% of the proposed condominiums are affordable to low or moderate income, or 15% will be affordable to lower-income households:
Proposed number of housing with childcare facilities:
Proposed land donation acreage?
Explain:
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Density Bonus Supplemental Form
Question Number
Total number of Inclusionary Units proposed:
Percentage of restricted affordable units in the proposed project:
Total number of residential units in the proposed project:
II. Requested Concessions/Waivers/Reductions
Concessions & Incentives
Please list the concessions and incentives (the project is eligible for) the project is seeking and describe how each requested concession or incentive would result in identifiable and actual cost reductions for the project.
Waivers
Please list any waivers the project is seeking and describe how each requested waiver is necessary to allow the proposed project to accommodate the additional permitted density.
Reduced Parking
If you are seeking a reduction in parking pursuant to Government Code 65915(p), indicate the number of spaces proposed per bedroom and the criteria proposed for the reduction. Provide the walking distance from the project site to the nearest transit stop on the vicinity map of your planning application plans.
Rev. (01/26) Page 2
Density Bonus Supplemental Form
Contact Information
Planning Division: 408-615-2450 | Email: [email protected] Rev. (01/26) Page 3