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Builder's Remedy - high rise apartment buildingAbout thirty percent of Bay Area cities and towns do not have housing plans approved by the state. With this being the case, the Builder’s Remedy can be used in those municipalities to force projects through that the community does not want, or which violate zoning laws or CCRs (Covenants, Codes, and Restrictions). This also means that neighbors may object, but it will be ineffective in derailing the project.

Los Gatos does not have an approved housing plan right now

Los Gatos is one of those communities without an approved housing plan, which we can see online at the Housing Element Compliance Report – please note the screenshot below, which I just took. .

 

Why the Builder's Remedy can be used: image of Los Gatos and the Housing Element Compliance Report as of 9-1-2023

State bills behind the Builder’s Remedy

There are a number of relevant CA state bills, and I’ll include two of them below. These are challenging for me to read, digest, and summarize, so I will provide links in an effort to make it easier for our readers to go directly to the source and get better info than I am able to provide.

SB-167, Housing Accountability Act (2017)  (Sometimes referenced as HAA) This has the goal of encouraging low and moderate income housing as well as transitional or emergency housing, and preventing cities and towns from easily dismissing those projects. It makes it harder for jurisdictions to reject these proposed developments.

SB-330, The Housing Crisis Act of 2019  From the California YIMBY site: “SB 330 prohibits local jurisdictions from enacting new laws that would have the effect of reducing the legal limit on new housing within their borders, or delay new housing via administrative or other regulatory barriers.” The changed housing regulations intended to open up more housing construction in communities that had been fighting growth.

The basic thrust for years has been to prevent communities that aren’t permitting enough building of housing that is more affordable from blocking those developments. We all know that it’s a problem that housing is so costly, and it’s that expensive precisely since there’s a dire shortage of it, particularly for moderate and low income residents.

What exactly is the Builder’s Remedy?

The best definition that I found for the Builder’s Remedy is from the Rueben, Junius & Rose, LLP website:

“The builder’s remedy is a mechanism in the Housing Accountability Act that prohibits any city that has not adopted a compliant housing element by the required deadline from applying its general plan and zoning standards to reject certain housing development projects. “

Building on the bills referenced above, and probably others, the state deemed that each city or town must have a plan for more housing, particularly more affordable units, and also to provide a list of possible future housing sites. Without the plan being approved, any such city or area is vulnerable to the Builder’s Remedy.

Los Gatos and the Builder’s Remedy

The Town of Los Gatos is required by the state to create a path forward by 2031 for 1,993 new homes. As it is currently written, the town’s 2040 General Plan provides for 3,783 new units by creating more apartment complexes. This is nearly double what the state requires, but perhaps the idea is to get ahead of the curve and not be at the mercy of the Builder’s Remedy again. I really don’t know why it’s so many.

Areas in town where the Builder’s Remedy, or the use of related housing bills from the state, is being proposed include swaths of the town, including downtown, east, and north Los Gatos:

  • The Post Office across from the Town Plaza Park at 101 S. Santa Cruz Ave, where a mixed use, 5 story building with 72 units may be built, per The Los Gatan
  • 405  Alberto Way at Los Gatos-Saratoga Road  (previously was office space)
  • 50 Los Gatos-Saratoga Road, the current Los Gatos Lodge site (across from Restaurant Asa)
  • 14859 Los Gatos Blvd., part of the North 40.
  • The Mirassou School at 220 Belgatos Road, where 4 acres, possibly more, may become 30 new homes – 6 duet homes, 24 houses (9 of them with ADUs, to be built by Robson Homes)

Objections

Where will they all go? Open space is evaporating, traffic is bad and downright dangerous on summer weekends, and schools are full with no room to expand. Most Los Gatans do recognize the need for more housing, and especially for more affordable homes so that folks can retire here and not need to move out of state where it’s cheaper and so that their kids can buy a house here without having to make $400,000 per year to do so.

I do not have a background in city planning, nor in law, but it seems that with the shift away from office spaces we have an opportunity to build more homes in those areas. 405 Alberto Way is a good example of what I think is a reasonable shift from office to homes. Alberto Way already has a number of condominiums, townhouses, and senior housing. The main challenge with that location is road congestion, which is already terrible (especially on summer weekends).

If the Los Gatos Lodge, which is across the street, also becomes housing, that’s quite a lot more cars on the road all in one place. Can roads be widened, or something done to alleviate backups, if both go through? That’s my main concern.

At the Mirassou School site (formerly the location of Mulberry School), some of the houses have ADUs that practically touch the back fence. The houses will be tall, about 25′ high, and for neighbors backing to them there will be a loss of light and privacy. For those along Belgatos Road, there will be an increase in traffic. We’ve already seen two fatal accidents near Belgatos and Blossom Hill Road, so safety concerns are paramount.

What about lawsuits? There are some in the state who object strongly enough that they are taking the issue to court. I have not yet read of any success from this avenue.

Fire risk and developments – shouldn’t safety be first?

The state has been discouraging construction in the zones most at risk for fire. So why is the post office location a consideration? The image below is from the CalFire map. The post office is in town, so is a Local Responsibility Area (LRA), but that does not make it a safe place to put a tall apartment building if fire comes close and residents are forced to evacuate on short notice. (Remember, elevators are shut off during fires.)

I should add that the Toll House and many other buildings in that neighborhood were not deemed to be in the Very High Fire Hazard Severity Zone when they were built. The maps were redrawn in recent years and more of Los Gatos, Monte Sereno, and Saratoga area now in those zones than were previously.

 

Can the Builder's Remedy be used anywhere? Note the CalFire Map - Los Gatos Post Office Location in the Very High Fire Hazard Severity Zone

Insurance costs have been rising dramatically for everyone, but even more for those in the high fire zones. The HOA dues at 101 S. Santa Cruz will have to reflect that. How will the 20% of “affordable” unit owners be able to manage those steep fees to cover hazard or fire insurance?

Encouraged: locations near transit

In general, housing across the state is being encouraged along transit corridors, particularly where there are non automobile options such as train, light rail, and busses. Most of these projects do not line up with that goal.

The VTA’s 27 bus line does go through Los Gatos (fairly close to all of these projects) and ends up at Kaiser Santa Teresa, but it’s not fast or efficient, and it’s unlikely that most of the new residents will be using that way to get to work as it’s almost an hour via the bus to make that journey.

Light rail stops at the Winchester Station in Campbell. Putting housing closer to that, or accessible with a shuttle bus to that station, makes more sense in terms of transit access than some of these other locations.

Working on the housing element plan

The staff is working to get our housing element plan revised to protect residents from the Builder’s Remedy projects that are being forced on neighborhoods without much collaboration. The next meeting was proposed for September 7, 2023, but an email just came through stating that “The Housing Element Advisory Board Meeting of September 7, 2023 is CANCELLED to allow staff time to prepare draft edits to address HCD comments. ” (HCD refers to Housing and Community Development.)

While some residents believe that the current plan (not the one rejected by the state in May) is compliant, not everyone agrees. The Los Gatos Community Alliance is asking for more housing units to be planned in and they believe that the current plan is unlikely to pass. See: Group says Town needs to add more sites to housing list – from the Los Gatan website.

Let’s hope that the town can quickly put together a fully compliant housing plan or Housing Element that meets the requirements of the housing element law. We need more housing, but it should come about through collaboration, rather than as a punishment for failing to get the plan approved fast enough for the state.

Final editorial thoughts

Given that 30% of the Bay Area municipalities are in the same boat, it begs the question about the state’s requirements. If a teacher were flunking 30% of her or his students, it’s the teacher who would be called into question.

We do need more housing, and aside from the Post Office, which is located in the Very High Fire Hazard Severity Zone, I can see the need in these available areas. However, many of them are terribly dense, or in the case of the Mirassou School development, the homes will be far too close to the property lines and the road out of the neighborhood is already dangerous without added vehicular traffic. As stated above, there have been 2 separate fatalities near Blossom Hill Road near Belgatos Road already. Is a traffic signal even being considered?

We can have sane expansion of housing options and especially affordable housing projects. I don’t see the Builder’s Remedy as a sane way forward, but simply a punishment on communities that didn’t get their act together fast enough.

 

Related reading:

Sacramento letter clarifies compliance – The Real Deal

30 new homes at Mirrasou School – our Belwood of Los Gatos blog (see plans and supporting docs for this project)

LA Court weighs in on the builder’s remedy – Reuben, Junius & Rose LLP site

‘Builder’s Remedy’ development targets post office site for five-story building – San Jose Spotlight

To remedy, or not to remedy – that is the question – California YIMBY

Silicon Valley Town May Be Tied Up In Building Rules – SF Gate

‘Builder’s Remedy’ development targets post office site for five-story building – Los Gatan