Like the town of Los Gatos, Cupertino has employed a filing technicality in the state builder’s remedy to contest controversial projects.
Now YIMBY Law, a prohousing group based in San Francisco, has sued the city for denying two builder’s remedy projects with a combined 53 homes, the San Jose Mercury News reported.
One project filed by Chunhua Tang would build a 20-unit, five-story, condominium building at 20739 Scofield Drive. It would replace a single-family home.
The proposal faced opposition from neighbors last year, who said it would add congestion and safety issues to a busy single-family neighborhood.
The other project filed by Lixin Chen would build 25 single family homes and eight condos on an 86.1-acre site known as Vista Heights, formerly the McDonald Dorsa Quarry, west of Linda Vista Drive and Mount Crest Drive and south of Linda Vista Park.
Both invoked the builder’s remedy, a decades-old loophole in state housing law that allows developers to bypass zoning rules in cities that fail to certify their state-mandated housing plans, providing they include 20 percent affordable housing. The deadline was Jan. 31, 2023.
Scofield and Vista Heights were submitted before Cupertino’s housing element was approved last May. Under the state housing element plan, Cupertino must plan to build 4,588 homes by 2031.
The issue, for YIMBY Law, is how the city handles the builder’s remedy provision that allows developers 180 days after submitting a preliminary application to submit a full application, or else it will expire. Developers have 90 days after that to resolve any missing information.
In a statement, Gillian Pressman, managing director for YIMBY Law, said Cupertino’s interpretation of the law gives developers only 90 days after the first revision request to complete the updates.
“This would allow a city to ask for more work, such as a change to a large study, just hours before the end of the 90-day period,” Pressman said. “It’s absurd and unrealistic. They’re clearly doing this to try and get out of building homes, just like they’ve been doing for decades.”
The state Department of Housing and Community Development says a developer can have successive 90-day periods to fix their applications, which could run indefinitely. The department also threatened to get the state attorney general to enforce its interpretation.
Interpretation of the builder’s remedy has been subject to debate. Last week, the town of Los Gatos filed a lawsuit seeking to clarify the 90-day rule, after insisting it wouldn’t roll over for developers, who wanted unlimited time to complete their applications.
In 2023, Yimby Law and the California Housing Defense Fund sued Cupertino and a dozen Bay Area cities over their failure to meet the state deadline for housing element plan submissions.
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