Staff Response to Appeal Letter (PLN26-00318)
The appellants’ attorney prepared an appeal letter provided as Attachment 4. Staff has prepared responses to the main points below.
Appellants challenge the City’s use of the statutory exemption to CEQA under AB 130 (2025), alleging that the Project is not consistent with the General Plan or Zoning Ordinance, and therefore is not eligible to utilize the exemption.
AB 130, enacted in 2025, added a statutory CEQA exemption for qualifying multifamily development projects. Pursuant to Public Resources Code Section 21080.66, the exemption applies if a proposed project meets the following criteria:
The project site must be not be more than 20 acres. Here, the project site is 0.61 acres.
The project site must be located within an incorporated municipality. Here, it is within the incorporated municipality of the City of Santa Clara.
The project site must have been previously developed with an urban use, and adjoin other urban uses. The project site meets these requirements.
The project must be consistent with the Zoning Code and General Plan. Here, the use is authorized by both the MU-CC zoning and CMU General Plan designation, and meets all objective development standards not subject to a waiver or concession.
The project density must meet the minimum density requirement set forth in Government Code Section 65583.2(c)(3)(B), which is 15 du/ac. Here, the density is 26.2 du/ac.
The project cannot be located in various sensitive habitats listed in Government Code Section 65913.4(a)(6), meaning the project site must not be located in a coastal zone, on farmland or wetlands, on a hazmat site, within an earthquake fault zone, within a special flood hazard area or regulatory floodway, on lands subject to a conservation plan, within habitat for special species, or on lands under a conservation easement. Here, the project site is not in any of those sensitive locations.
The project must not demolish historic structures on the national, state, or local register. No historic structures are proposed to be demolished.
The project cannot be a hotel, motel, or transient lodging. No such use is proposed.
As a condition of approval, the project must prepare a Phase I Environmental Assessment. The Project has been conditioned to require the Assessment.
The City must provide notice to traditionally and culturally affiliated California Native American tribes and, if consultation is requested, conduct the consultation process required by Public Resources Code Section 21080.66(b). This process was completed on July 31, 2025. The City met with the Tamien Nation and Muwekma Ohlone Tribe of the San Francisco Bay Area.
The Appellants disagree with the City’s determination for criterion c) above: that the project is consistent with the General Plan and Zoning District.
Relevant General Plan Goals and Policies.
The appeal letter states that a prerequisite of AB 130 is that public agency is required to ensure that substantial evidence supports the finding that a project is consistent with the applicable general plan and zoning ordinance that would allow a reasonable person to conclude that the housing development is consistent. The letter argues that the project falls short in that it does not analyze or discuss “substantial evidence” in the record explaining how the project is consistent with the General Plan goals and policies or zoning so that “a reasonable person may not conclude that the project is consistent based on the conclusory statements.” Staff response: Public Resources Code Section 21080.66(a)(4)(A) supplies the governing consistency standard. A housing development project is deemed consistent with the applicable general plan and zoning ordinance if there is substantial evidence that would allow a reasonable person to conclude that the project is consistent. The question, therefore, is whether the record contains evidence sufficient to satisfy that statutory reasonable-person standard.
The project was reviewed against the Zoning Code and General Plan. The June 17, 2026, Development Review Hearing staff report includes the following sections that analyze the project against the Zoning Code to include the facts of the project, provide reasonable assumptions predicated upon facts, and expert Planning opinion supported by facts: Project Data, Points for Consideration, and Findings Supporting Staff’s Recommendation. The Project Data section includes the Project Data and Compliance Table as an Attachment that analyzes the project against the zoning code development standards such as setbacks and heights. The Points of Consideration section includes the project’s background, site layout and design, building architecture, circulation and parking, and landscaping and open space analysis. The Findings section provides staff’s evaluation of the project’s consistency with the findings in Code Section 18.120.020(F). Furthermore, the staff report provides information on how the project is subject to the City’s Affordable Housing Ordinance, which allows the applicant to use State density bonus law to seek waivers and concessions. The requested waivers and concessions are listed in the staff report and in the project data and compliance table, as well as stated in staff presentation. A staff presentation was also provided at DRH to assess the project against the Zoning Code and General Plan. Taken together, the staff report, attachments, plans, and hearing presentation constitute record evidence from which a reasonable person could conclude that the Project is consistent with the applicable General Plan and zoning provisions, as required by Public Resources Code Section 21080.66(a)(4)(A).
Despite this evidence, the Appellants argue that a reasonable person “could not” conclude that there is “substantial” evidence in support of General Plan consistency, based on a series of qualitative policies in the General Plan, including 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”), 5.4.1-P5 (“Provide appropriate transition between new development in the [El Camino Real] Focus Area and adjacent uses consistent with General Plan Transition Policies.”); and 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.”).
Public Resource Code Section 21080.66(a)(4)(A) does state that the project shall be consistent with applicable portions of the general plan and zoning ordinance. But significantly, under subparagraph (C), it clarifies that the approval of concessions and/or density bonus waivers or reduction of development standards, and reduced parking ratios pursuant to Government Code Section 65915 shall not be grounds for determining that the project is inconsistent with the applicable general plan or zoning ordinance. Accordingly, to the extent the Appellants rely on the Project’s requested waivers for height, upper-story stepbacks, or setbacks as evidence of inconsistency, those departures cannot serve as the basis for an inconsistency determination. The remaining qualitative policy concerns must be evaluated against the record as a whole, including the evidence regarding site layout, building articulation, transitions, landscaping and open space, and the division of the Project among three buildings.
In their appeal, the Appellants also state that page 5-128 of the General Plan requires a geotechnical investigation before a development permit can be granted, due to seismic and liquefaction risks.
Staff response: Page 5-128 does reference the requirements of the Seismic Hazards Mapping Act, which requires a geotechnical analysis for many types of development projects. The City does not have the discretion to waive the requirements of the Seismic Hazards Mapping Act; nor is it doing so for this project. Condition BD4 of the architectural review also required the Applicant to provide the mandatory geotechnical data, and the Applicant will be expected to comply with its obligations under Condition BD4 and the Seismic Hazards Mapping Act.
The appeal letter also states that the CEQA exemption under AB 130 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.
Staff response: Public Resources Code Section 21080.66(c)(1)(A) requires the local government, as a condition of approval, to require the development proponent to complete a Phase I environmental assessment as defined in Health and Safety Code Section 78090. The Conditions of Approval include Fire Department Condition F2.b addressing the Phase I Environmental Assessment. The final condition should expressly satisfy the requirement in Section 21080.66(c)(1)(A).
Relevant Zoning Code provisions.
The appeal letter goes on to argue that the project is inconsistent with the zoning code, because it does not comply with the minimum step-back of six feet for all structures greater than three stories.
Staff response: As explained above, Public Resources Code Section 21080.66(a)(4)(C) provides that approval of a density bonus, incentive or concession, waiver or reduction of development standards, or reduced parking ratio pursuant to Government Code Section 65915 is not a ground for determining that a project is inconsistent with the Zoning Code. The Project requests a waiver of the multistory stepback requirement. Approval of that waiver therefore does not, by itself, make the Project inconsistent with the Zoning Code for purposes of Section 21080.66.
The Appellants argue that the project is inconsistent with the El Camino Real Specific Plan.
On pages 5 and 6 of their appeal letter, the Appellants cite to alleged inconsistencies with the recently adopted El Camino Real Specific Plan.
Staff Response: The El Camino Real Specific Plan had not been adopted when the proposed project’s application was deemed complete and cleared by the Project Clearance Committee. The application was deemed complete and cleared on April 14, 2026 by the Project Clearance Committee. The El Camino Real Specific Plan was adopted by City Council on May 19, 2026. Pursuant to the Housing Accountability Act (the “HAA”), Government Code Section 65589.5(o), a multifamily residential project must be against the applicable objective general plan, zoning, subdivision, and design-review standards in effect when the application was deemed complete. Accordingly, development standards first adopted through the May 2026 Specific Plan do not apply and cannot be used as the standards against which the City may evaluate this Project for purposes of HAA disapproval or reduced-density review.
The Appellants argue that the City should have required additional evidence before granting the requested waivers and concessions.
The appellants’ letter challenges the sufficiency of the evidence supporting the use of waivers and a concession.
Concession/incentive: The project is utilizing one concession to reduce the amount of commercial square footage for the project. The appellants argue that there needs to be additional evidence that the concession will result in “actual” cost reductions. The appellant is asking the City Council to require the “actual cost of the 1 bedroom/1bath ADUs and how the waivers and concessions requested are needed to cover the ADU costs.” The appeal letter also states that no explanation or economic information is provided by the applicant or requested by the City.
Staff response: The requested concession concerns a reduction in the otherwise-required commercial Floor Area Ratio; it is not a concession for the ADUs. The relevant inquiry is therefore whether the commercial-FAR concession qualifies under Government Code Section 65915, not the actual cost of the individual ADUs.
A reduction in a square-footage requirement or other zoning requirement may qualify as an incentive or concession under Government Code Section 65915, subdivision (k), when it results in identifiable and actual cost reductions to provide for affordable housing costs or rents for the targeted units.
With respect to the commercial square footage, the concession will reduce the cost of developing the Project, including the cost attributable to providing the Project's affordable units, by avoiding the construction of additional commercial floor area that is not necessary to accommodate the residential component of the Project and that the Applicant's market analysis indicates is not reasonably supportable at this location. The Project Site has an unusual and constrained configuration, with a narrow northern leg extending to Alviso Street and the larger portion of the Site situated behind that frontage. Consequently, only a limited portion of the Site has the street exposure, visibility, and direct pedestrian access ordinarily associated with viable commercial space.
The Project responds to these conditions by locating approximately 795 square feet of commercial/meeting space in Building 3 at the Alviso Street frontage, where such space has the greatest public visibility and accessibility. Requiring the full amount of otherwise-required commercial floor area would require additional nonresidential construction in portions of the Site with substantially less commercial exposure and would increase construction and development costs that could otherwise be devoted to the residential development, including the affordable units.
The City must grant a requested concession or incentive unless it makes a written finding, based on substantial evidence, that one of the grounds in Government Code Section 65915(d)(1) applies. Those grounds include that the concession does not result in identifiable and actual cost reductions consistent with subdivision (k); that it would cause a specific adverse impact on public health and safety or on property listed in the California Register of Historical Resources for which there is no feasible method to satisfactorily mitigate or avoid the impact without rendering the development unaffordable to low- and moderate-income households; or that the concession would be contrary to state or federal law. Here, the record does not contain substantial evidence supporting a statutory finding that would permit denial of the requested concession.
State law does not require the Applicant to prove that a requested concession is necessary to make the overall Project economically feasible. Nor may the City condition review or approval on an additional report or study not otherwise required by law. If the City Council decides to approve the appeal to reject the concession, the City Council will need to make a written finding, based upon substantial evidence, that the concession does not result in identifiable and actual cost reductions, consistent with subdivision (k) of the Density Bonus Law.
Waivers. The applicant requested waivers to reduce the front and rear setbacks, reduce the multistory stepback requirements, and to increase the building height. The appellants argue that there is insufficient evidence justifying the need for these waivers.
With respect to the setback reductions, the Project Site has an unusual and constrained configuration consisting of a relatively narrow northern portion extending to Alviso Street and a larger, irregularly configured southern development area. The available building envelopes are further constrained by the physical space required for internal vehicular circulation and garage access, pedestrian and emergency access, parking, landscaping, stormwater facilities, utility access, and common and private open space. Imposing the full otherwise-required front and rear setbacks would further contract those already-constrained building envelopes and remove floor area necessary to accommodate the residential units proposed as part of the Density Bonus Project.
The plans demonstrate that the requested setback reductions are necessary to fit the Project's residential buildings within the available portions of the Site while maintaining required circulation and other site functions. Requiring compliance with the otherwise-applicable setbacks would require the residential buildings to be shifted or reduced in a manner that would physically eliminate residential floor area and units and thereby preclude construction of the Project as proposed at the density permitted under Government Code section 65915.
With respect to the multistory stepback reductions, the Project utilizes relatively narrow townhouse floor plates. Because the units are vertically organized, requiring the upper levels to step back from the floors below would remove a substantial portion of the usable floor area of those upper levels. The resulting loss cannot reasonably be replaced by enlarging the building footprints because the available ground-level building envelopes are constrained by the irregular shape of the Site, property-line setbacks, internal vehicular and emergency circulation, parking, pedestrian access, landscaping, stormwater facilities, utilities, and open-space requirements.
Application of the stepback requirement would therefore require significant reductions in the size of individual dwelling units and, in portions of the Project, elimination or reconfiguration of dwelling units. The standard would consequently physically preclude construction of the Project as proposed at the density permitted pursuant to the Density Bonus Law.
The Project also incorporates architectural features that reduce the apparent mass of the buildings notwithstanding the requested stepback waiver, including variations in wall planes and materials, fenestration, balconies and roof terraces, and articulated roof and cornice elements. These design features are not the legal basis for the waiver, but they demonstrate that waiver of the stepback standard does not result in an unarticulated building form.
Finally, with respect to the increased height, the irregular configuration of the Project Site materially limits the amount of residential floor area that can be accommodated horizontally. The building footprints are also constrained by the need to provide internal access and circulation, garages and parking, pedestrian and emergency access, landscaping, stormwater facilities, utilities, and common open space. The Project therefore accommodates a portion of its residential floor area vertically.
Reducing the buildings to the otherwise-applicable maximum height would eliminate upper-level residential floor area that cannot be relocated within the constrained building footprints. Compliance with the height limitation would consequently require the reduction or elimination of dwelling units or residential floor area and would physically preclude construction of the Project as proposed at the density permitted under Government Code section 65915.
The requested waiver is limited to the additional height necessary to accommodate the proposed residential development. The Project is divided among three separate buildings rather than a single continuous building mass, and the elevations incorporate architectural articulation, variations in materials and wall planes, roof elements, balconies, and terraces that reduce the apparent scale of the structures.
The requested waivers would not result in a specific adverse impact upon public health or safety for which there is no feasible method of mitigation or avoidance, would not adversely impact property listed in the California Register of Historical Resources, and would not be contrary to state or federal law. A waiver is required where application of a development standard would physically preclude construction of the qualifying project at the density or with the incentives or concessions permitted under the Density Bonus Law. The City cannot require the developer to remove amenities or redesign the project merely to eliminate the need for the waiver. Accordingly, these development standards must be waived or reduced to the extent necessary to permit construction of the Project pursuant to Government Code Section 65915(e).
The Appellants Also Argue that the findings required to approve the Architectural Review are also not supported by substantial evidence.
The appeal letter argues that the Findings 2 and 3 of the Architectural Review cannot be made because, in the Appellants’ view, the Project would “unreasonable interfere with the use and enjoyment of neighboring development” and is not “in keeping with the character of neighborhood” and “detrimental to the harmonious development.” Staff response: The staff report for June 17, 2026, DRH included staff’s analysis of each finding for the Architectural approval. Staff has expanded its discussion of Findings 2 and 3 in the Appeal staff report to respond to the appellant’s concerns. Findings 2 and 3 use qualitative terms such as “use and enjoyment,” “in keeping with the character,” and “harmonious development.” However, under the Housing Accountability Act (HAA), Government Code § 65589.5, if a housing development project complies with the applicable objective general plan, zoning, subdivision, and design-review standards and criteria in effect when the application was deemed complete, after application of waivers and concessions, the City can disapprove the project only if it makes written findings, supported by a preponderance of the evidence in the record, establishing both of the following:
Specific adverse public-health or safety impact. The project would cause a “specific, adverse impact upon the public health or safety” unless it is denied or reduced in density. The statute defines that as a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written public-health or safety standards, policies, or conditions that existed when the application was deemed complete.
No feasible mitigation. There is no feasible way to satisfactorily mitigate or avoid that impact other than denying the project or requiring it to be built at a lower density.
Although the Appellants may disagree with the City’s conclusions about the subjective criteria in the architectural review findings, the HAA does not permit subjective compatibility criteria to operate as additional development standards for disapproving or reducing the density of an otherwise objectively compliant housing development project. The City may nevertheless make the locally required Architectural Review findings where the record supports them, and the evidence supporting those findings is identified in the agenda report.
The Appellants ask that the Project be Revised.
The appellants request that the City Council overturn the DRO’s approval and require the applicant to redesign the project as requested by the appellant.
Staff response: The appellants ask that the Project be redesigned to reduce height and increase setbacks, which are development standards for which the applicant has requested waivers under the Density Bonus Law. As described above, strict application of those standards would physically preclude construction of the project at the allowable density, and the City cannot require redesign merely to avoid an otherwise-required waiver.
In addition, the appellants requested changes to specific architectural details, including wood-trim windows and arches, and modification of the balcony condition. Staff concludes that the current architectural design is of high quality and compatible with surrounding developments, for the reasons identified in the Architectural Review findings and supporting record.
Finally, the appellants wanted to constrain the uses allowed in the commercial space. The range of permitted commercial uses is not within the scope of this Architectural Review appeal.
1500 Warburton Avenue ● Santa Clara, CA 95050 ● Phone 408-615-2450 ● Fax: 408-247-9857 ● www.SantaClaraCA.gov Staff Response to Appeal Letter (PLN26-00318)
Community DevelopmentCommunity Development
Community Development
Community Development