Many Bay Area jurisdictions started this year largely unfamiliar with the builder’s remedy. As they found themselves newly subject to it, they’ve had to get a crash course.
The decades-old provision of California housing law strips jurisdictions that fall out of compliance with state planning requirements of their ability to enforce local zoning codes, meaning developers get the green light to propose residential projects taller or denser than cities would otherwise allow, or in parts of jurisdictions not zoned for housing.
There are many factors behind the newfound popularity of this tool. The largest is the timing of the eight-year Regional Housing Needs Allocation process: This cycle, which culminated with a Jan. 31, 2023, deadline for plans, was the first one to be subject to a number of reforms passed by the Legislature in recent years. Add to that state housing regulators’ newfound vigor in enforcing planning rules and questioning local plans, along with some cities’ misunderstanding of RHNA rules which landed them out of compliance, and the groundwork was laid for a far broader application of the builder’s remedy.
As of Oct. 2, roughly 60% of the Bay Area’s cities, towns and counties remain subject to the provision. Though the remedy remains largely untested in court, where it will no doubt be challenged, it’s opened the door for a flood of proposals around the Bay Area. Here’s a list of where we’ve been tracking the most notable builder’s remedy projects so far in 2023:
San Jose: An affiliate of Marin County-based Syufy Enterprises proposed a 257-unit project at 741 S. Winchester Blvd. and a 358-unit project at 5655 Gallup Dr. in San Jose using the builder’s remedy at the end of February. Syufy already owns both properties, though the February applications marked its first attempt at raising homes on either. San Jose has since seen a roster of additional builder’s remedy applications.
Concord: In Concord, Las Vegas-based entity Q Village LLC is using the builder’s remedy in a unique way: to legalize housing that already exists. Q Village, helmed by developers Eddie Haddad and Georges Maalouf, submitted an application in August to renovate 286 units of former military housing at 3295 Haleakala St., a site formerly owned by the U.S. Coast Guard. The city of Concord has made clear it wants to see the nearly 60-acre property redeveloped into hundreds of new homes, and the property is currently zoned for military use, meaning any renovation of those units for use as civilian housing would have needed rezoning. Enter builder’s remedy: using the provision, Q Village is hoping to avoid the rezonings and simply secure building permits, a lawyer for the group told the Business Times in August.
Menlo Park: Real estate developer N17 Development made headlines when it submitted a proposal for a massive mixed-use project at 80 Willow Rd. in Menlo Park, not far from the city’s downtown. As the Silicon Valley Business Journal’s Kevin Nguyen reports, the proposal — which spans multiple buildings, and calls for one tower more than 300 feet tall — included a 150-key hotel; between 50,000 and 280,000 square feet of office or research and development space; 8,300 square feet of retail; and between 800 and 1,150 residences.
Palo Alto: In March, Peninsula Land & Capital proposed the first builder’s remedy project in Palo Alto: a 45-unit condominium development at 300 Lambert St. in the city’s Ventura neighborhood. The Palo Alto-based developer and investor, which made headlines this summer as the buyer of 550 California, a 350,000-square-foot office building in San Francisco’s downtown, had previously proposed a 49-unit project there in 2021 under a city program that would have allowed the developer some flexibility to exceed local zoning regulations in exchange for providing 20% on-site affordable units.
Sonoma: Concord Developer DeNova Homes submitted its builder’s remedy application for 64 apartments on 2.2 acres at 19320 Highway 12 in Sonoma in early February. The site is zoned for a maximum of 55 units; DeNova previously submitted plans for a project of that size in 2021 before shrinking the proposal down to 50 units in 2022, and then returning with the builder’s remedy application in 2023.
Mountain View: The South Bay city has seen a smattering of builder’s remedy projects, including an 85-unit residential project at 294-296 Tyrella Ave. and an application for a 200-unit project at 1920 Gamel Way. Both of those applications would replace existing — smaller – residential proposals in the city. Developer Forrest Linebarger, behind the Tyrella Avenue project, said in February the application was a “much more aggressive approach” to residential development in Mountain View, which he characterized as having tried to stymy his attempts to raise new residential development for decades.
Oakland: Modular developer R2 Building filed a preliminary builder’s remedy application in February for a 39-story tower with 425 units at 2044 Franklin St., taking advantage of the comparatively short period of time Oakland was out of compliance with state housing law and therefore subject to builder’s remedy. The site was already entitled for a 22-story tower with 357 units; R2 put 2044 Franklin up for sale this year, offering both the entitled project and the vested builder’s remedy application, which it says offers prospective buyers a chance to increase the unit count on the site.
Los Altos Hills: Los Altos Hills, a wealthy suburban enclave on the San Francisco Peninsula, was the site of the Bay Area’s first-known builder’s remedy project — projects, really. There, resident Sasha Zbrozek proposed redeveloping an existing single-family home on close to two acres at 11511 Summitwood Rd. into 15 apartment units and five townhomes; he also proposed an alternative project that would leave the existing home intact and raise the five townhomes. Forest Linebarger, the same developer behind one of the builder’s remedy applications in Mountain View, also threw his hat in the ring, proposing a pair of 44-unit condominium projects at 10728 and 10758 Mora Dr.
