A Bay Area developer wants to build a six-story, 85-unit housing project on just half an acre in Mountain View, multiple times more than what zoning laws would allow.
The developer’s proposal is significantly denser than the city’s zoning laws allow for, but he believes the state's "builder's remedy" law allows him to ignore these tighter restrictions and go big with the housing project. The developer, Forrest Linebarger of Tower Investment, is one of multiple developers in the Bay Area seeking to use builder's remedy as an opportunity to skirt around local zoning.
But Linebarger believes the city is purposefully stalling his project. The city maintains it's not delaying Linebarger's project, but rather waiting for him to pay a $50,000 deposit fee before his application can move forward. The city said this fee is a deposit that's required for all “complex projects.”
Every eight years, cities are required to submit an updated housing element to the state, detailing how they will meet mandated housing goals. Failing to create a compliant housing element has consequences, like ineligibility for state grant funding and costly fines. It also opens the door for builder’s remedy, which allows developers to bypass a city’s zoning laws if that city is not in compliance with California's housing development goals.
Because Mountain View failed to meet the Jan. 31, 2023, deadline to submit its housing element, it’s currently out of compliance with state law, as are many cities across the Bay Area.
In order to qualify for builder’s remedy, developers must make at least 20% of their project’s units affordable to low-income residents. Linebarger’s project aims to do precisely that: the plans include 17 affordable units, which is exactly 20% of the total 85 units. But he says the city won’t accept his application.
Linebarger’s attempts to develop his property, located at 294-296 Tyrella Ave. in Mountain View in the Whisman neighborhood, have been ongoing for a few years. He first proposed an 11-unit market-rate rowhouse project in 2021, which the City Council approved and granted a development permit. But Linebarger said the project didn’t end up penciling out financially.
“Obviously that’s not very many housing units,” Linebarger said. “This is a site that’s (zoned for) medium-high residential, so it’s a prime site for new, dense housing. It’s right near the Shoreline area, it’s near downtown, it’s kind of a perfect place for this kind of housing.”
So Linebarger came back with a new proposal in April 2022, this time seeking to triple the number of units to 33. Linebarger said city staff accepted and processed it as a preliminary application under SB330, a state bill that aims to streamline the approval time for developments in order to address the state’s housing crisis.
With builder’s remedy now in effect until Mountain View can pass a compliant housing element, Linebarger is aiming even higher. On Feb. 1, the day after the housing element deadline passed, he submitted an 85-unit proposal for the same property, which is just more than half an acre large and sits on the southwest corner of Tyrella Avenue and East Middlefield Road. Half the lot is currently occupied by a single family home, and the other half is empty.
Despite his new proposal meeting the 20% affordable housing requirement, the minimum for a development to qualify for builder’s remedy, Linebarger said the city would not at first accept his new application.
In a Feb. 2 email that Linebarger shared with the Voice, Mountain View Associate Planner Hang Zhou informed Linebarger that he must withdraw his previous application for the new one to be considered.
“I’ll need you to provide me a written notice to officially close out that application first before I can create new planning applications on the property,” Zhou wrote. “Once I have received the written notice from you, I’ll be able to process the application and create the new records.”
In a Feb. 6 response, Linebarger requested a copy of the city policy that prohibits him from having two applications on file at once. He said he’d prefer to have both applications on file, to keep his options open, and that he’s not aware of any city policy that prohibits him from doing so.
“Is this policy available to the public? I have not seen it located anywhere,” Linebarger wrote in his email to city staff.
Assistant Community Development Director Lindsay Hagan responded on Feb. 16, offering a different assessment than the one initially made by city staff.
“The City does not have a policy on simultaneous application submittal,” Hagan wrote. “After review, we determined that you are permitted to retain your existing application on file with the City (and) submit your new application.”
Mountain View maintains it will “comply with applicable state laws on accepting and processing applications,” including those that are legal under builder’s remedy. Regarding Linebarger's project, the city said it's not delaying the project, but rather, "awaiting fee payment for both applications in order to continue the review of the April 2022 application and complete intake of the new application."
When asked if any builder’s remedy projects have been submitted, city Chief Communication Officer Lenka Wright said the city “has received interest from two applicants for 1920 Gamel Way and 294 Tyrella Ave,” but no submittals.
Wright said the property owner at 1920 Gamel Way has shown interest in constructing a six to seven-story, 200-unit residential development. The developer, D/S Gamel Way LLC, already has a 121-unit condo project on this property approved by the city, but could theoretically increase the number of units under builder’s remedy, so long as at least 20% of them are affordable to low-income residents, or 100% are affordable to middle-income residents.
Builder’s remedy avoidance?
Rafa Sonnenfeld, policy director at YIMBY Law, believes cities are employing a variety of tactics to avoid accepting development applications that are legal under builder’s remedy. YIMBY Law, along with the California Housing Defense Fund and Californians for Homeownership, is suing 12 Bay Area jurisdictions, including Palo Alto, for not complying with state housing law. Mountain View is not included among those cities.
“Cities don’t like having to be in a position to approve a project that doesn’t conform with their local law,” Sonnenfeld said. “So they will pull all the tricks in the book to find ways to undermine the ability of those projects to move forward.”
While Mountain View appears to have changed its stance on allowing Linebarger to have two applications in at once, the developer said the city’s now requiring him to pay a high fee, to the tune of $50,000, for each of his two applications.
“I’m not sure why they think that’s legal,” Sonnenfeld said of these fees. “California, statewide, requires application fees to be proportional to the actual cost of processing the application.”
When asked about the fee, the city wrote in a statement that there is “no unique fee for projects to which the ‘builder's remedy’ may apply,” and that the $50,000 is a deposit required for all “complex projects.”
“The only fees that are required are the fees applicable to development project applications generally and are consistent with the City's adopted master fee resolution,” the city wrote. “Complex projects that require staff support beyond the scope of work included in the basic fees are processed on a cost recovery basis, with a deposit paid in advance.”
Linebarger said he already paid about $2,850 in fees for his 33-unit project last year, and that there was never any indication he’d have to shell out more fees for that project, or that it was considered a “complex project” – until now.
“The other interesting thing about these builder’s remedy projects is, this statute is barring the city from applying its zoning standards to deny the project,” Linebarger said. “So what’s complex about that?”