HomeMy WebLinkAboutTM-2025-001, etc. - HAA violation Builder's Remedy ProjectCounty of Santa Clara
Clerk -Recorder's Office
110 West Tasman Drive, First Floor
San Jose, California 95134
(408) 299-5688
11/5/2025
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CITY OF CUPERTINO EC C ®n(
10300 TORRE AVE.
CUPERTINO, CA. 95014
Re: CALIFORNIA ENVIRONMENTAL QUALITY ACT POSTINGS
Dear Lead Agency:
Enclosed please find the public copy posted in Santa Clara County
Clerk -Recorder's Office for 30 days per CALIFORNIA CODES PUBLIC
RESOURCES CODE SECTION 21152 (c)
Sincerely,
County Clerk -Recorder
By:
Mike Louie, Dep ty lerk-Recorder
Board of Supervisors: Sylvia Arenas, Betty Duong, Otto Lee, Susan Ellenberg, Margaret Abe-Koga
County Executive: James R. Wiliams
SANTA CLARA COUNTY CLERK
CEQA FILING COVER SHEET
County of Santa Clara - Clerk -Recorder's Office
State of California
File Number: ENV25825
ENVIRONMENTAL FILING
No. of Pages: 10
Total Fees: $0.00
File Date: 09/29/2025
Expires: 10/29/2025
LOUIS CHIARAMONTE, Clerk -Recorder
By: Mike Louie, Deputy Clerk -Recorder
THIS SPACE FOR CLERK'S USE ONLY
Complete and attach this form to each CEQA Notice filed with the County Clerk
TYPE OR PRINT CLEARLY
Check Document being Filed:
❑ Environmental Impact Report (EIR)
❑ Filing Fee (new project)
❑ Previously Paid F&W (must attach F&W receipt and project titles must match)
❑ No Effect Determination (F&W letter must be attached)
❑ Mitigated Negative Declaration (MND) or Negative Declaration (ND)
❑ Filing Fee (new project)
❑ Previously Paid F&W (must attach F&W receipt and project titles must match)
❑ No Effect Determination (F&W letter must be attached)
❑ Notice of Exemption (NOE)
❑✓ Other (Please fill in type):
Notice to City of Cupertino re HAA Violations (CGC section 65589.5)
1. LEAD AGENCY: City of Cupertino
2. LEAD AGENCY EMAIL: emiS@cupertino.gov
3. PROJECTTITLE: 11841 Upland Way Builders Remedy Project
4. APPLICANT NAME: Nageshwara Vempaty PHONE: (650) 533-8367
5. APPLICANT EMAIL: nvempaty@gmail.com
6. APPLICANT ADDRESS: 14486 Leland Circle, Saratoga, CA 95070
7. PROJECT APPLICANT IS A: ❑ Local Public Agency ❑ School District ❑ Other Special District El State Agency ❑✓ Private Entity
8. NOTICE TO BE POSTED FOR 30 DAYS.
Filing fees are due at the time a Notice of Determination/Exemption is filed with our office. For more information on filing fees
and No Effect Determinations, please refer to California Code of Regulations. Title 14, section 753.5.
Rev_8/2023
Allen Matkins Leek Gamble Mallory & Natsis LLP
Allene j� atk i ns Attorneys at Law
1 11 1 Y 1 l l�_l l L7 Three Embarcadero Center, 12" Floor I San Francisco, CA 94111-4074
Telephone: 415.837.1515 1 Facsimile: 415.837.1516
www.allenmatkins.com
Caroline G. Chase
E-mail: cchase@allenmatkins.com
Direct Dial: 415.273.7455 File Number: 394728.00001/4902-8997-4610.1
Via Electronic Mail
July 1, 2025
William C. Mazzota
ALESHIRE & WYNDER, LLP
wmazzota(Zlawattorneys.com
Re: Notice of HAA Violations - Builder's Remedy Project at 11841 Upland
Way, Cupertino, California
Mr. Mazzota:
We write on behalf of our client, Nageshwara Vempaty ("Applicant"), the owner of the property
located at 11841 Upland Way, Cupertino, California 95014 ("Property"). As you are aware, the
Applicant proposes a six -unit mixed -income housing development project on the Property
("Project"). There is no doubt that the Project continues to qualify for the "Builder's Remedy"
under the Housing Accountability Act ("HAA") pursuant to the timely submittal of a SB 330
preliminary application, a full development application ("Project Application"), and a Project
Application resubmission.
On June 6, 2025, the City of Cupertino ("City") Planning Division erroneously concluded that the
Project is no longer vested on the basis that the Project Application had not been deemed complete
within 90 days following the City's first incompleteness determination. The City's position was
confirmed in a subsequent letter from your office dated June 20, 2025. We understand that the City
is currently litigating in defense of this position; however, its interpretation of Government Code
section 65941.1(e)(2) is clearly incorrect for the reasons set forth in our letter dated June 13, 2025
(attached as Exhibit A and incorporated herein). There is no ambiguity that this provision allows
for multiple 90 -day periods.
Again, the City is also in violation of the HAA under Government Code section 65589.5(h)(6)(D)
because its actions constitute "a course of conduct undertaken for an improper purpose, such as to
harass or to cause unnecessary delay or needless increases in the cost of the proposed housing
development project, that effectively disapproves the proposed housing development without taking
final administrative action."
This letter is submitted for purposes of providing the City the requisite "written notice detailing the
challenged conduct and why it constitutes disapproval to the local agency established under Section
65100." (Gov. Code § 65589.5(h)(6)(D)(i)). The City's conduct effectively disapproves the Project
Los Angeles I Orange County I San Diego I Century City I San Francisco I New York
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
William C. Mazzota
July 1, 2025
Page 2
without taking final administrative action in that the City flatly refuses to process the Project
Application for the Project under the Builder's Remedy.
The City must comply with the HAA. Government Code section 65589.5(h)(6)(D) further
provides:
"Within five working days of receiving the applicant's written notice described in clause (i),
the local agency shall post the notice on the local agency's internet website, provide a copy
of the notice to any person who has made a written request for notices pursuant to
subdivision (f) of Section 21167 of the Public Resources Code, and file the notice with the
county clerk of each county in which the project will be located. The county clerk shall post
the notice and make it available for public inspection in the manner set forth in subdivision
(c) of Section 21152 of the Public Resources Code."
• "The local agency shall consider all objections, comments, evidence, and concerns about the
project or the applicant's written notice and shall not make a determination until at least 60
days after the applicant has given written notice to the local agency pursuant to clause (i)."
• "Within 90 days of receipt of the applicant's written notice described in clause (i), the local
agency shall issue a written statement that it will immediately cease the challenged conduct
or issue written findings that comply with both of the following requirements:"
o "The findings articulate an objective basis for why the challenged course of conduct
is necessary."
o "The findings provide clear instructions on what the applicant must submit or
supplement so that the local agency can make a final determination regarding the
next necessary approval or set the date and time of the next hearing."
• "If a local agency continues the challenged course of conduct described in the applicant's
written notice and fails to issue the written findings described in clause (iv), the local agency
shall bear the burden of establishing that its course of conduct does not constitute a
disapproval of the housing development project under this subparagraph in an action taken
by the applicant."
• "If an applicant challenges a local agency's course of conduct as a disapproval under this
subparagraph, the local agency's written findings described in clause (iv) shall be
incorporated into the administrative record and be deemed to be the final administrative
action for purposes of adjudicating whether the local agency's course of conduct constitutes
a disapproval of the housing development project under this subparagraph."
Allen Matkins Leck Gamble Mallory & Natsis LLP
Attorneys at Law
William C. Mazzota
July 1, 2025
Page 3
Please be advised that the City's HAA violations will be promptly reported to HCD, which may in
turn refer the enforcement matter to the California Attorney General.
Regards,
Caroline G. Chase
Cc: Tina Kapoor, Acting City Manager
Ben Fu, Community Development Director
Emi Sugiyama, Senior Planner
Enclosure
Exhibit A
Allen Matkins Leck Gamble Mallory & Natsis LLP
Allen IVlatkins Attorneys at Law
Three Embarcadero Center, 12" Floor I San Francisco, CA 94111-4074
Telephone: 415.837.1515 1 Facsimile: 415.837.1516
www.allenmatkins.com
Caroline G. Chase
E-mail: cchase@allenmatkins.com
Direct Dial: 415.273.7455 File Number: 394728.00001/4934-0970-8876.4
Via Electronic Mail
June 13, 2025
Ben Fu, Community Development Director
City of Cupertino
ben ja11 rtinf, ,,cupertino.gov
Re: Continued Vesting of Builder's Remedy Project at 11841 Upland
Way, Cupertino, California
Mr. Fu:
We write on behalf of our client, Nageshwara Vempaty ("Applicant"), the owner of the property
located at 11841 Upland Way, Cupertino, California 95014 ("Property"). As you are aware, the
Applicant proposes a six -unit mixed -income housing development project on the Property
("Project"). There is no doubt that the Project continues to qualify for the "Builder's Remedy"
under the Housing Accountability Act ("HAA") pursuant to the timely submittal of a SB 330
preliminary application, a full development application ("Project Application"), and a Project
Application resubmission.
On June 6, 2025, the City of Cupertino ("City") Planning Division erroneously concluded that the
Project is no longer vested on the basis that the Project Application had not been deemed complete
within 90 days following the City's first incompleteness determination. We understand that the
City is currently litigating in defense of this position; however, its interpretation of Government
Code section 65941.1(e)(2) is clearly incorrect for the reasons set forth below. There is no
ambiguity that this provision allows for multiple 90 -day periods.
As explained in the petition for writ of mandate filed on April 8, 2025, with the Superior Court of
Santa Clara County in the related lawsuit against the City1:
On February 12, 2025, HCD issued a letter to the Town of Los Gatos, advising Los Gatos
that "under the PSA [Permit Streamlining Act], the 90 -day period for a developer to
resubmit an application after an incompleteness determination resets with each
incompleteness determination."
I Case No. 25CV462924. Exterior quotation marks omitted below.
Los Angeles I Orange County I San Diego I Century City I San Francisco I New York
Allen Matkins Leek Gamble Mallory & Natsis LLP
Attorneys at Law
Ben Fu, Community Development Director
June 13, 2025
Page 2
• In other words, HCD confirmed that the HCA [Housing Crisis Act] refers to, and
incorporates, the PSA's iterative process whereby each time an applicant resubmits an
application and receives an incompleteness determination, the applicant receives another 90
days to respond before the preliminary application expires.
• HCD similarly acknowledged this iterative process in an August 22, 2024 Notice of
Violation to the City of Beverly Hills, wherein HCD informed Beverly Hills "that the 90 -
day deadline resets after each incompleteness determination. A project with multiple
incompleteness letters and responses may have multiple 90 -day periods."
• This iterative process was adopted in a recent Los Angeles Superior Court ruling, which
concluded "that when an applicant receives an incompleteness determination pursuant to
section 65943 — not just the first incompleteness determination — an applicant has 90 days to
respond." (Janet Jha v. City of Los Angeles, et al. (Los Angeles Sup. Ct., Case No.
23STCP03499).
Furthermore, on June 5, 2025, the California Attorney General issued a legal alert to all local
agencies, including the City, highlighting recent amendments to the HAA and the recent Superior
Court decisions interpreting the HAA's provisions regarding the Builder's Remedy ("Attorney
General Legal Alert").2 As explained in the Attorney General Legal Alert: "Consistent
interpretation and application of the HAA statewide, including processing Builder's Remedy
applications without delay, is essential to reaching our collective mandate to resolve the housing
shortage crisis."
We caution that as explained in the Attorney General Legal Alert, consequences for the City's
failure to "properly implement the Builder's Remedy" could include the following, which
"emphasize the importance of the HAA and the Legislature's intent to further promote housing
development projects"3:
Referral to or Intervention by the Attorney General: Where a local government has
received a complete Builder's Remedy application after the housing element deadline in
Government Code section 65588, subdivision (e), but before HCD has issued a
substantial compliance certification for the local government's housing element, the
local government's refusal to process the Builder's Remedy application in accordance
with the law may result in HCD notifying the Attorney General of an HAA violation
pursuant to Government Code section 65585, subdivision (j). (See also Gov. Code, §
65585.01 [providing HCD and the Attorney General an automatic right to intervene in
existing third -party enforcement actions].)
2 Legal Alert from the California Department of Justice Office of the Attorney General to all Cities, Counties, Local
Agencies and other interested parties, June 5, 2025.
3 Exterior quotation marks omitted below.
Allen Matkins Leek Gamble Mallory & Natsis LLP
Attorneys at Law
Ben Fu, Community Development Director
June 13, 2025
Page 3
HAA Penalties: Where a court has found that a local government has violated the
HAA, a local government is potentially exposed to certain penalties under the HAA,
including attorney's fees, and a minimum fine of $10,000 per unit of the proposed
project pursuant to Government Code section 65589.5, subdivision (k). If a court finds
that a local government acted in bad faith in violating the HAA and failed to follow a
court's order or judgment, fines pursuant to Government Code section 65589.5,
subdivision (k) will be multiplied by a factor of five. (Gov. Code, § 65589.5, subd. (1).)
If a court has found that a local government previously violated the HAA within the
planning period, the fines will be multiplied by an additional factor for each previous
violation. (Ibid.)
HAA Appeal Bond Provision: Where a local government appeals a court order finding
that the local government violated the HAA, the local government must post an appeal
bond pursuant to Government Code section 65589.5, subdivision (m). The appeal bond
provision is evidence of the Legislature's intent that the HAA be "interpreted and
implemented in a manner to afford the fullest possible weight to the interest of, and the
approval and provision of, housing." (Gov. Code, § 65589.5, subd. (a)(2)(L).)
Please also be aware that pending Assembly Bill 712 would expand the remedies for a developer or
nonprofit housing corporation that prevails in a lawsuit to enforce the HAA (and other state housing
laws) against a local agency to include reasonable attorneys' fees and costs of suit.
We further caution that the California Attorney General has taken an active role in defending
Builder's Remedy projects over the past year. For example, the Attorney General recently
intervened in California Housing Defense Fund, et al. v. City of La Canada Flintridge4 by
petitioning the Los Angeles Superior Court for a writ of mandate requiring La Canada Flintridge to
process the developer's Builder's Remedy application in accordance with state law. On March 4,
2024, the Superior Court granted that petition for writ of mandate. As explained in the Attorney
General Legal Alerts:
• In ordering La Canada Flintridge to process the Builder's Remedy application in
accordance with state law, the Superior Court focused on three key points:
o The Legislature has expressed its intent that the HAA "be interpreted and
implemented in a manner to afford the fullest possible weight to the interest of,
and the approval and provision of, housing." (Gov. Code, § 65589.5, subd.
(a)(2)(L); Cal. Renters Legal Advocacy & Education Fund v. City of San Mateo
(2021) 68 Cal.App.5th 820, 854).
Super. Ct. L.A. County, Apr. 5, 2024, Case No. 23STCP02614.
Exterior quotation marks omitted below.
Allen Matkins Leek Gamble Mallory & Natsis LLP
Attorneys at Law
Ben Fu, Community Development Director
June 13, 2025
Page 4
o Pursuant to the HAA, a Builder's Remedy application vests at the time of
submission of a complete preliminary application.
o The refusal to process a timely Builder's Remedy application is a violation of the
HAA.
• Specifically, as to the first point, the court held that a "disapproval" of a Builder's
Remedy application is broadly interpreted under the HAA.
• Finally, the court concluded that the disapproval of the developer's Builder's Remedy
application, and La Canada Flintridge's refusal to process the application as a Builder's
Remedy application, was a violation of the HAA.
• La Canada Flintridge appealed, and on February 28, 2025, the superior court ordered La
Canada Flintridge to either post an appeal bond of $14 million, pursuant to Government
Code section 65589.5, subdivision (m), or dismiss its appeal. On March 4, 2025, La
Canada Flintridge dismissed its appeal.
The City's position that the Project's SB 330 preliminary application is no longer vested constitutes
an unlawful disapproval of a housing development project in violation of the HAA under
Government Code section 65589.5(h)(6)(H) for "mak[ing] a written determination that a
preliminary application ... has expired or that the applicant has otherwise lost its vested rights
under the preliminary application" for an improper reason. The City is also in violation of the HAA
under Government Code section 65589.5(h)(6)(D) because its actions constitute "a course of
conduct undertaken for an improper purpose, such as to harass or to cause unnecessary delay or
needless increases in the cost of the proposed housing development project, that effectively
disapproves the proposed housing development without taking final administrative action."
We request that the City retract its erroneous position in writing by June 20, 2025. Otherwise, we
will be forced to report these HAA violations to HCD, which may in turn refer the enforcement
matter to the California Attorney General.
Thank you in advance for your cooperation.
Allen Matkins Leek Gamble Mallory & Natsis LLP
Attorneys at Law
Ben Fu, Community Development Director
June 13, 2025
Page 5
Regards,
Caroline G. Chase
Cc: Tina Kapoor, Acting City Manager
Emi Sugiyama, Senior Planner