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A developer in Mountain View is threatening litigation if the city does not drop its conditions of approval and allow a builder’s remedy project to proceed.
Forrest Linebarger of Tower Investment wants to build a seven-story, 85-unit condominium development on a half-acre site, replacing an existing family home and empty lot at 294 and 296 Tyrella Ave.
The proposed development exceeds local zoning standards but can bypass these requirements under builder’s remedy. The project was submitted at a time when Mountain View did not have a compliant housing element, and meets the provisions of the state housing law because it has designated 20% of the units as affordable for lower-income families.
The project has been contentious since the get-go, with the developer and pro-housing groups alleging that the city of Mountain View has tried to “execute an end run around” builder’s remedy by imposing unlawful conditions of approval. Local residents have also criticized the project for being too tall for the lower-density neighborhood.
The threat of litigation came to a head at a public hearing last month, compelling city staff to postpone a recommendation to move the application forward for consideration by the City Council.
On Nov. 13, the planning division received a letter from Linebarger’s attorney, requesting more than 30 substantive revisions to the city’s conditions of approval as well as other claims related to the processing of the project, according to Senior Planner Krisha Penollar.
The letter was submitted the same day as the public hearing, and staff did not have enough time to fully review and respond to it. To give the planning division more time, Penollar requested a continuation of the hearing to a future date.
Letters threatening litigation
Earlier this year, Mountain View received letters from YIMBY Law and the California Housing Defense Fund threatening litigation if it attempted to impose unlawful conditions of approval on the Tyrella project.
The Nov. 13 letter from Linebarger’s attorney has similar objections. It states that the city has proposed over 200 conditions of approval, and that while Linebarger was willing to comply with most of them, there are some that would render the project infeasible.
The letter specifically calls out Mountain View’s park land dedication and transportation impact fees as a contravention of state housing law – an issue that recently came up with another builder’s remedy project in which the city ultimately reached a settlement agreement with the developer.
The letter also alleges that the city failed to properly notice the public hearing and did not provide enough time for Linebarger to review all of the conditions of approval.
Linebarger referred to these claims at the hearing, stating that he had been requesting to see the conditions of approval for more than a month and did not receive them prior to the hearing. He also said he was not informed about the meeting until he received a phone call from the city a day before, on Nov. 12.
“I really do think the city should spend a little time and try to coordinate this so that they do not put City Council in the unfortunate situation of having to approve the project with infeasible conditions, or alternately go down the road of a potential lawsuit,” Linebarger said.
However, the city says that it “complied with the legal requirements to notice the public hearing, which included a mailed notice to the owner’s address.”
Public reactions
The public still could comment on the Tyrella project at the Nov. 13 hearing, even though a final recommendation was postponed to a later date.
Several residents living in the neighborhood disapproved of the plans, citing concerns that the seven-story building would tower over single-family residences and bring more traffic and parking problems to the street.
“I think it’s time the city of Mountain View stop taking requirements from interests outside of the city, and put the interest of the residents that live here first,” said Roger Noel, a 42-year resident of Tyrella Avenue.
“I think you should do everything you can to push back on this project, even if it means going to court and demonstrating to the residents who live here and pay taxes here that you’re on their side,” he said.
Tim Palmer, another Tyrella Avenue resident, also cited concerns about the cumulative impact of traffic, noting that a four-story multifamily development is being proposed on the same street.
For Nicky Sherwood, who represents the Wagon Wheel Neighborhood Association, the lack of transparency from the developer was especially problematic. At the time of the hearing, the project plans were not available online. “My concern (is) that we don’t have much visibility into this project like we normally do. There’s no full data set or anything,” she said.
The public will have more opportunities to weigh in on the project, including at a joint administrative zoning and subdivision committee hearing, although the date has not been publicized yet, according to city records.
Take a look at the street view of the map on Google. The project does not fit into the mixed double and single story family neighborhood design. Even the town homes further down Tyrella don’t go up as high as this developer wants. It’s not about being a good neighbor and creating a nice community but about simple greed and density that strains public infrastructure, services and parks.
Good neighbors welcome more neighbors.
And good neighbors (in this case the developer) will pay all the fees and follow the conditions. This area is very welcoming and kind to all people, much more diverse than the other neighborhood.
The City Council and Mountain View residents support new housing by a wide margin. When did the Mountain View Voice become so anti-housing? It seems like shadowy anti-housing forces are influencing what the Voice publishes.
This story is not anti housing. People who don’t like this project are not antihousing. The developer himself slapped together some plans to get them in in time to qualify for this buider’s remedy shortcut. Well he left some things out. He admits that of 200 errors found by the city, the majority were reasonable. He seems to be mainly quibbling over the idea that like any other project he has to pay park in lieu fees for new construction He might have a point. On the other hand this builders remedy law itself might contravene the state constitution on the face of it. This issue has not been tested.
Bottom line, you certainly do not need the Builders Remedy punishment to get new housing. It’s clearly overkill. Mountain View has added thousands of units of new housing and has plenty more underway. The housing element rigamarole has been over complicated in general, and certainly to a city like Mountain View which has done so much in the way of adding new housing. Also unlike most cities which are impacted by mandated housing, Mountain VIew has managed to see thousands of new jobs within the city. Most cities are not so fortunate and some are actually losing population while they are hit by expensive mandates. The state constitution reserves the right to modulate housing construction to the purview of the cities. The excuse for the rigamarole is that the cities aren’t doing enough, but what about the cities that are? Surely it’s unconstitutional to mandate more for them. No test is applied to current mandates to see if they are reasonable or necessary. It’s ripe for a trial to address this concern. Maybe this will be where Builder’s Remedy is ruled to be unconstitutional under the California constitution….
Mountain View will not have built enough housing until the average market rental rates have decreased significantly. This is an extremely important distinction- the MARKET RATE if rent needs to DECREASE before the housing crisis can stop getting worse. Until then, no ‘neighbor’ is entitled to preserve their low density neighborhood. ‘Not fitting’ in the neighborhood is not a good excuse- you are simply accustomed to an antiquated, inequitable neighborhood layout that fails to satisfy the local need for housing. One 7 story building is not enough, this neighborhood needs 10 more 7 story apartment buildings! I have zero sympathy for the people that live in the neighborhood pushing back against this project because they don’t want to look at a tall building.
On the other hand, perhaps it is also a serious issue that the city gains such a large percent of its income from developer fees. The city has a ton of infrastructure projects that need funding, and will only have more as more housing is built. Currently, they rely on builders to pay them in order to fund these things. i am not sure if that is fair, but regardless it is frankly absurd that the city with google, microsoft, and a plethora of highly profitable tech companies has to have any financial issues at all. These companies should be paying exorbitant tax rates for the stress they have brought upon our city!
Well if we would just stop building the subsidized units which rent for below market rate then maybe Developers would build more units. But right now there’s more of a quota for the subsidized units than for the market rate units so that really disincentivizes construction of New Market rate projects.
What developers then build is luxury units which are priced for people who have plenty to spend on housing. Then the developers make a profit. They don’t want to decrease the rent they can charge their goal is to increase it. So long as there are plenty of highly paid individuals in an area then developers are going to strive to meet their need to get rid of as much as their paycheck as they want on housing.
I attended the November meeting and spoke to Mr. Linebarger afterwards to ask why the project went from the initial 11 units (pre-pandemic) to 33, then 44 units, and now 85. He says it must be 85 to include 20% affordable housing units, and tried to make the case that people want to live in close, vibrant communities. When he asked wouldn’t we want a nice retail district with a coffee shop I realized he was saying what he thought would influence me; when I pointed out we have a coffee shop he was unaware of the Clocktower a block from his property.
I believe Mr. Linebarger has an agenda with the City of Mountain View going back many years. Reading the history of this property reveals several instances where he seemed more ready to take an antagonistic approach than to reach an agreement. He had the plans for this 85 unit tower ready to submit the same day Builders Remedy projects became possible, and rather than adding 20% affordable housing onto his 44 unit plan he jumped to the much bigger one he is now pushing.
I also note that while he says in this article he did not have time to read the city’s “200 conditions of approval” his lawyer sent a letter contesting them the same day as the meeting, forcing the city to postpone the hearing until they could read the lawyer’s letter. A cynical mind could interpret those events as an attempt to set the city up for litigation.
I live in the neighborhood and have attended several meetings regarding rezoning and proposed developments. Residents actually welcome the plans the city has in place for opening areas for development and have lamented the loss of rental units in the area which were very much affordable units.
Mr. Linebarger’s 16 units of affordable housing will not offset those losses as much as the units the city has already included in other developments. His total project will however add at least 100 cars to a busy and uncontrolled intersection. I am being charitable by assuming not all residents will have two cars as most people in the neighborhood do.
The city planners admitted they have very little control over this project and it seems to be moving forward as speedily as a small department can manage. A few of us see no way to prevent it; it instead will become the poster child for urging Sacramento to revise the Builders Remedy law to prevent developers forcing unsightly and unsuitable projects into local communities.