Syufy Enterprises has used the state’s builder’s remedy to push a seven-story apartment complex on a former movie theater site not zoned for homes in West San Jose .
An affiliate of the San Raphael-based developer has filed plans using the state legal loophole for a 264-unit complex at 741 South Winchester Boulevard, the Silicon Valley Business Journal reported.
Builder’s remedy, an untested provision in state housing law, applies to cities and counties that have blown their state-mandated housing plan deadlines. It allows developers to bypass local zoning rules for residential projects that meet affordable housing thresholds.
San Jose, whose “Housing Element” plan to add 62,200 homes in the next eight years hasn’t passed muster with state housing regulators, is the last big city in the Bay Area without a certified plan.
The deadline for certification was Jan. 31, leaving it open to builder’s remedy applications such as the one filed by Syufy’s affiliate, SyRES Properties.
SyRES has taken aim at a 3-acre lot that once was home to a domed Century 24 theater near Santana Row. SyRES once proposed building a 38,000-square-foot fitness club on the site of Syufy’s historic moviehouse, bulldozed in 2014.
Plans now call for a 264-unit highrise, of which 20 percent would be marked affordable — enough to qualify for the builder’s remedy.
In correspondence last month between city planners and developers, San Jose remains firm that the site is strictly zoned for commercial use, the Business Journal reported. Whether the 30-year-old loophole in the state’s Housing Accountability Act would allow apartments is uncertain.
“The ‘Builder’s Remedy’ is a largely untested legal provision of the HAA, and it is unclear what the Builder’s Remedy allows and whether it serves to entirely void the city’s zoning ordinance and General Plan,” the planning division told SyRES.
“Ultimately, the legislature and/or court will need to provide clarity.”
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The city said that SyRES’ affordable housing compliance plan application was incomplete, according to the correspondence. Planning staff also asked SyRES to include more parking, revise the front, side and rear setbacks, shift the building position to allow for a wider paseo and add more open space.
To date, more than 15 developers in San Jose have invoked the builder’s remedy, now working its way through the courts.
Syufy Enterprises and its affiliate, SyRES Properties, aims to build more than 500 homes on two of its former domed movie theater sites in San Jose. It filed preliminary plans to build 257 units at 741 South Winchester Boulevard and 52 units at 5655 Gallup Drive.
— Dana Bartholomew