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Save Dominican Valley
Save Dominican Valley explains the "Builder's Remedy"
In June of 2023, Dominican Valley LLC submitted five SB 330 Preliminary Application proposals to develop on the 20-acres (approx.) parcel surrounded on three sides by Deer Park Avenue, Gold Hill Grade, Highland Avenue, and Margarita Drive in San Rafael. The developer claimed eligibility for what is known as the “Builder’s Remedy” for 4 of the 5 proposals.
In my opinion, that claim is completely without merit.
I want to take a moment to applaud the enormous effort being made by the Save Dominican Valley community group (SDV) to educate the public and elected officials about the pertinent issues at hand and to ensure that any development in Dominican Valley is appropriate, environmentally sustainable, and legally compliant. Although they’ve fully acknowledged that there are many steps that any development proposal must go through, it's clear that their goal is to bring up the challenges to development on the Dominican Valley site, early on, in the hope of saving the City, the developer, and the public from wasting time and taxpayers’ money in the years ahead.
SDV's most recent comment letter to the City takes an in-depth look at the Builder’s Remedy and is copied below.
What is the Builder’s Remedy?
There is a common misconception among staff, elected officials, and journalists in Marin that the Builder’s Remedy is somehow undefeatable if a developer claims eligibility for it. We hear this from elected officials all the time, claiming that their “hands are tied” and that a development had to be approved because of “state housing laws.”
But nothing could be further from the truth. There are many reasons why and how a City is well within its right to deny this ‘remedy’ by invoking a wide variety of reasonable findings and local, state, and federal laws to do so.
Furthermore, all of the fundamental requirements for eligibility to claim the Builder’s Remedy (e.g., the definition of whether a Housing Element is or is not “substantially compliant with state housing law”) have yet to be adjudicated in the California courts, which is the only entity that can make such a determination (not a city or a developer or any state official or agency, including the Department of Housing and Community Development (HCD) in Sacramento).
The so-called Builder’s Remedy is a provision of Section 65589.5 of the Housing Accountability Act. It stipulates that under certain conditions local zoning regulations can be put aside and developers can submit non-conforming proposals for approval and bring legal action to enforce the right to do so. However, this explanation is far too simplistic to determine how and when this so-called ‘remedy’ applies.
It’s also important to understand that the City is not legally required to respond to SB 330 Preliminary Applications, at all. However, if they do respond, best practices would indicate that their response on specific issues should be accurate and reasonably complete.
In their response letters to the developer’s Preliminary Applications, the City only stated the following regarding the four proposals’ eligibility for the Builder’s Remedy:
“Builder’s Remedy. The application does not include enough affordable units to qualify for the Builder’s Remedy. In order to qualify for the Builder’s Remedy, at least 20% of the total units in a project must be affordable to low-income households. (Government Code § 65589.5(h)(3).)”
This response is inadequate. As such, it leaves the issue open to misinterpretation by the developer because it is reasonable for a developer to assume that since the City took the time to issue a response to his applications, this is their only objection to the builder’s remedy's eligibility; i.e., if the number of affordable units is increased, then the proposals will be eligible for the remedy and all local zoning codes will no longer apply.
Corroboration of this is found in a recent article published on September 18, 2023, in the Marin IJ by Richard Halstead, “San Rafael Group Challenges ‘Builder’s Remedy’ Housing Plan,” wherein he came to that same erroneous conclusion.
In an attempt to help clarify the issue, in July, I wrote to the City of San Rafael, commenting on the developer’s ‘builder’s remedy’ claim and offering reasons, based on the processing dates and adoption and certification of the City’s Housing Element, why the Builder’s Remedy’ did not apply in this instance.
In response, the City sent me what was essentially a boilerplate disclaimer, which said,
“Neither state nor local law requires that the City respond to preliminary applications. Rather, preliminary applications are self-executing which means the City is not required to make an affirmative determination regarding the submission. (See Gov. Code § 65941.1(d)(3).) Therefore, the Department’s July 28, 2023 response letters were adequate.”
This, of course, completely misses the point. I did not question the adequacy of their responses or ask them to make an “affirmative determination.” Similar to the feedback some members of Save Dominican Valley have received after the submission of their first comment letter on September 8, 2023, my point in writing was not about what the City is required to do but to suggest what would be reasonable and prudent to do to begin the developer’s project review process on the right foot.
This begs the question of whether the best interests of the public--their health, safety, and general welfare--are well-served by officials that are content to only do the minimum they feel they are legally obligated to do (i.e., there are no regulations prohibiting a city from making as many comments as they want about an SB 330 Preliminary Application).
Here then is the second comment letter from Save Dominican Valley to the City of San Rafael, regarding the Dominican Valley LLC preliminary development proposals’ eligibility for the Builder’s Remedy.
October 3, 2023
Dear Mayor Colin and Members of the City Council,
We are writing to correct misstatements of facts and mischaracterizations of our September 8, 2023 letter, regarding the development proposals submitted by Dominican Valley LLC, as described in the September 18, 2023 Marin IJ article by Richard Halstead, “San Rafael Group Challenges ‘Builder’s Remedy’ Housing Plan,” (Copy attached) which we feel raise confusion about applicable laws that need to be clarified.
As you know, our September 8th letter presented our concerns about the processing of the five SB 330 Preliminary Application development proposals submitted by Dominican Valley LLC. However, in that letter, we did not comment on the ‘builder’s remedy,’ We feel obligated to reach out to you as our elected officials because the City’s responses noted in that article suggest that City officials may also share some misunderstandings about the Housing Accountability Act and when the ‘builder’s remedy’ is applicable.
Perhaps the most concerning statements made in the Marin IJ article are in its final, summary paragraph, which states,
“While builder’s remedy projects are not subject to denial by local elected officials, they are required to comply with the California Environmental Quality Act. Some legal experts, however, have questioned whether a jurisdiction could legally deny a builder’s remedy project based on the information reported in a CEQA review.”
Both of these statements contradict state housing statutes and The Housing Accountability Act, in particular. (The “HAA”) In truth, there are several reasons the City can deny the Dominican Valley LLC project proposals claiming the ‘builder’s remedy’ and credible legal experts have not “questioned whether a jurisdiction could legally deny a builder’s remedy project based on the information reported in a CEQA review.” (Note: No Appellate Court has addressed this issue, to date.)
Let’s begin with the claim that “builder’s remedy’ projects are not subject to denial by local elected officials.”
In addition to failing to meet the requirements for low and moderate-income housing noted by the City’s responses to the Dominican Valley LLC SB 330 Preliminary Applications, there are other reasons for denial of the ‘builder’s remedy’ that apply in this instance.
According to Section 65589.5 (d) of the Housing Accountability Act,
“65589.5 (d) A local agency shall not disapprove a housing development project, including farmworker housing as defined in subdivision (d) of Section 50199.50 of the Health and Safety Code, for very low, low-, or moderate-income households, or an emergency shelter, or condition approval in a manner that renders the project infeasible for development for the use of very low, low-, or moderate-income households, or an emergency shelter, including through the use of design review standards, unless it makes written findings, based upon a preponderance of evidence in the record, as to one of the following:” [Emphasis added]
Basis of Denial #1:
The development proposal constitutes a threat to public health and safety
The Builder’s Remedy can be denied under Section 65589.5 (d)(2), which states that a project can be denied or conditioned if it has an adverse impact on public health and safety. At this time, nothing constitutes a greater adverse impact on public health and safety than the threat of wildfires in very high fire hazard areas in California. This threat is so severe that in today’s market, any homes built in any areas designated as very high fire severity zones will pay significantly higher insurance rates or be unable to qualify for homeowner’s insurance at all.
Section 65589.5 (d)(2) states that a project can be denied if,
“65589.5 (d)(2): The development project or emergency shelter as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible.
“As used in this paragraph, a specific, adverse impact means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.” [Emphasis added]
The intent of the law here is clear. It is even repeated multiple times in the regulations (See Section 65589.5(j)(1)(A).) We, again, point you to the San Rafael Code Wildlands Urban Interface (“WUI) designation given to the Dominican Valley LLC property, and the ordinance’s vegetation management, ground clearing, and setback requirements (Chapter 4.12. Wildland-Urban Interface – Vegetation Management Standards of the San Rafael Fire Code), as authorized and provided for under California Government Code, Section 51179, which modifies the determinations under Section 51178.
As noted in our September 8th letter, the San Rafael Code describes the WUI as “a designation of a very high fire severity zone as provided in Government Code Section 51179” and requires developers “to create defensible space around structures that will minimize the spread of fires from wildlands to structures, from structures to wildlands, and from structures to structures.” (i.e., ground clearing/ground hardening)
“Defensible space” is defined in the Code as an
“area one hundred feet (100′) around a structure where vegetation management has been conducted to reduce the potential for transfer of fire between the structure and the adjacent wildland, the adjacent wildland and the structure, or from structure to structure.” [Emphasis added]
The very existence of the Wildlands-Urban Interface section in the San Rafael Code constitutes a memorialized “finding” by the City that enforcement of vegetation management and structure’s setback provisions are necessary to protect the health and safety of the community; meaning that any failure to do so – as all of the Dominican Valley LLC proposals require -- would constitute a threat to that health and safety.
Basis of Denial #2:
The development proposal violates state and federal law
Section 65589.5 (d)(3) states that a project can be denied if,
“65589.5 (d)(3): The denial of the project or imposition of conditions is required in order to comply with specific state or federal law, and there is no feasible method to comply without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible.” [Emphasis added]
As we noted in detail, in our letter of September 8, 2023, all of the Dominican Valley LLC development proposals violate state and federal law about “waters of the state” and the wetlands permitting provisions of the Clean Water Act. To qualify for the ‘builder’s remedy’ development proposals cannot violate any state or federal law and the requirements of those laws are not subject to waivers, concessions, or local variances.
The subject property is traversed by no less than six “Riverine” Wetlands/ streams and tributaries, a designation that is subject to both federal and state regulations in addition to the San Rafael Zoning Code setback requirements.
The Dominican Valley LLC development proposals appear to violate the riverine wetlands protections noted in the U.S. Fish & Wildlife Service National Wetlands Inventory Map, the California ECO/Atlas of the California Aquatic Resource Inventory, the restrictions found in the State Wetland and Riparian Area Monitoring Plan (WRAMP) and the California Wetland and Riparian Area Protection Policy (WRAPP), and the San Rafael Municipal Code’s streams setback/protection requirements.
Basis of Denial #3:
The development proposal results in significant, adverse, unmitigated environmental impacts under CEQA
The authority of the California Environmental Quality Act – CEQA, in this instance, is uncontestable. In Section 65589.5 (e) of The Housing Accountability Act, it states,
“Section 65589.5 (e) Nothing in this section shall be construed to relieve the local agency from complying with the Congestion Management Program required by Chapter 2.6 (commencing with Section 65088) of Division 1 of Title 7 or the California Coastal Act (Division 20 (commencing with Section 30000) of the Public Resources Code).
“Neither shall anything in this section be construed to relieve the local agency from making one or more of the findings required pursuant to Section 21081 of the Public Resources Code or otherwise complying with the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code)” [Emphasis added]
Similarly, in addition to the numerous environmental assessment needs described in our letter of September 8, 2023, other provisions for an exemption from CEQA under the HAA are not met by the project proposals. For example, per Section 65589.5 (h)(6)D(i)(I)(ib), an exempt project cannot be located in a “very high fire hazard zone.”
As such, the question of whether the Save Dominican Valley LLC development proposals are subject to CEQA assessment is most certainly, yes.
Basis of Denial #4:
The city was in “substantial compliance” with state housing law at the time a development proposal is submitted
According
to the “Housing
Element Review and Compliance Report” on the Department of Housing and
Community Development website, the City of San Rafael is presently in
compliance with state housing law and has been since the date of the adoption
of its Housing Element on May 15, 2023.
Therefore, as noted in the “CHRONOLOGY OF EVENTS,” below, the City of San Rafael was “substantially compliant” with state housing law at the time that Dominican Valley LLC submitted its five SB 330 Preliminary Application development proposals. And as such, the “builder’s remedy” does not apply.
According to Section 65589.5 (d)(5) of the Housing Accountability Act and project can be denied if,
“65589.5 (d)(5): The development project or emergency shelter is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation as specified in any element of the general plan as it existed on the date the application was deemed complete, and the jurisdiction has adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article.” [Emphasis added]
The record shows that this was the case regarding the five project proposals submitted by Dominican Valley LLC.
The inadequacy of the City’s response to the developer’s demands.
On July 28, 2023, the Community Development Department responded to the five pre-application proposals submitted by the Applicant: Proposal A, submitted June 7, 2023; Proposal B, submitted June 8, 2023; Proposal C, submitted June 12, 2023; Proposal D, submitted June 13, 2023; and Proposal E, submitted June 22, 2023.
In 4 of the 5 proposals (Proposals B, C, D, E), the Applicant proposed proceeding under “Government Code section 65589.5(d) et seq.,” the “builder’s remedy.” In the City’s responses to each of those proposals, under “Deficiencies,” they only point out that 4 of the 5 proposals do not qualify for the builder’s remedy based on the required percentages of affordable/low-income units provided. However, as argued above, this response was grossly inadequate.
The City should have informed the developer that, based on the evidence in hand, at that time, (a) None of the pre-application proposals qualified for the ‘builder’s remedy’ for all of the reasons noted, above, and (b) None of the pre-application proposals qualified for the ‘builder’s remedy’ because the ‘builder’s remedy’ only applies if a city’s Housing Element is not substantially compliant with state housing law at the time of the submission of an applicant’s proposals.
The Chronology of Events, shown below, shows that the City of San Rafael was “substantially compliant” with state housing law as of May 15, 2023, when it formally adopted its Housing Element because the City’s final version of the Housing Element was subsequently certified by the Department of Housing and Community Development (HCD), with only minor changes that did not in any way impact the Applicant’s proposals. As such, at the time the Applicant submitted their proposals (beginning on June 7, 2023), the City of San Rafael was in fact in “substantial compliance” with state housing law.
The definition of “substantial compliance” is a “matter of law,” not opinion
The determination of whether a city’s Housing Element is or is not “substantially compliant” with state housing law is not delineated under state law and is not up to the City, HCD, or the developer. It can only be decided by the courts.
Even YIMBY Law, the staunchest opponent of local control of planning and zoning, admits that the determination of whether or not a Housing Element adopted by a city is “substantially compliant” with state housing law is a “matter of law.” They state that “only a court can ultimately decide whether a housing element “substantially complies.” (See Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1191.) [Emphasis added]
Whether or not HCD has certified a Housing Element and the date of that certification are also not relevant facts in the court’s determinations. The courts are free to disregard HCD’s opinions and determinations.
In sum, the City of San Rafael has been operating under a substantially compliant Housing Element since the date of its adoption, May 15, 2023, before Dominican Valley LLC submitted its preliminary project applications. Therefore, the ‘builder’s remedy’ cannot be applied to or enforced for any of the Dominican Valley LLC development proposals.
CHRONOLOGY OF EVENTS:
The following chronology of events substantiates that the City of San Rafael was operating under a substantially compliant Housing Element at the time when the Dominican Valley LLC submitted its SB 330 Preliminary Applications for its 5 development proposals.
May 15, 2023
The City “adopts” its Housing Element, making its “finding” that it is “substantially compliant” with state housing law.
May 17, 2023 - Housing Element sent to HCD; May 18 HCD acknowledges receipt.
The City submits Housing Element to HCD for certification.
June 1, 2023
HCD requests minor revisions to the Housing Element, all of which the City accepts and none of which impact the applicant’s subsequent proposals. Their Housing Element, which was adopted on May 15, 2023, was found to be “substantially compliant” with state housing law.
June 7, 2023
The final version of Housing Element is “published.”
Developer begins to submit proposals, starting June 7, 8, 12, 13, and 22.
June 22, 2023
HCD notifies the City of San Rafael that it has “certified” the final version of the Housing Element.
Conclusions
Based on the facts and circumstances described herein, the City is clearly not subject to the ‘builder’s remedy’ with respect to the Dominican Valley LLC development proposals.
We urge the City Council to take action before more of the public’s time and taxpayer’s money is wasted. In our opinion, time is of the essence because we have it from reliable sources that the developer intends to only rely on the City’s very limited response to their SB 330 Preliminary Applications (that the only ‘builder’s remedy’ deficiency was the lack of low-income affordable units) as guidance and barring that has a green light in crafting their final application.
We consider the City’s failure to inform Dominican Valley LLC of the disqualification of its five proposals to qualify for the ‘builder’s remedy,’ in their responses to the developer’s SB 330 Preliminary Applications, a failure to represent the best interests of the community and to ensure the protection of the health and safety of the residents of San Rafael. It is of no benefit to the community for the City not to inform the developer of all of the requirements under Section 65589.5, now, instead of providing the developer with fallacious grounds to claim the builder’s remedy or to allege similar entitlements in the future.
Respectfully submitted,
The Save Dominican Valley Steering Committee
TO LEARN MORE, please visit Save Dominican Valley
Bob Silvestri is a Marin County resident, the Editor of the Marin Post, and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded by individuals and nonprofit donors. Please consider DONATING TO THE MARIN POST AND CVP to enable us to continue to work on behalf of all California residents.