Property owner seeking to use builder’s remedy for Foster City proposal

The law pushes cities to pass and implement their housing elements, which are detailed blueprints that each jurisdiction must draft, submit and get approved by the state outlining how they will achieve their prescribed housing goals. Once adopted locally, the document typically needs official certification, or approval, from the state. 

The longer a local agency remains out of compliance, or lacks state approval, the higher the chances developers will invoke the builder’s remedy, which allows them to circumvent many local housing rules — provided it offers a certain threshold of affordable housing — while the city waits for its official stamp of approval.

Such a rule could be a godsend to the property owner of 1601 Beach Park Blvd., who preferred not to be named, as he has made repeated efforts over more than a decade to build a 32-unit development on the 1.35-acre site, with 20% of units below-market-rate. But issues continuously surfaced in getting the project approved, with the owner citing political-turned-personal interests that continue to block much-needed housing. He also added it was used as a recall issue against Herb Perez, the former mayor who was recalled for several reasons, some of which included his stance on housing growth.  

Many neighbors in the surrounding area had voiced opposition to the project at prior council meetings, raising concern over traffic congestion and depriving current residents of potential amenities. But even with favorable public feedback more recently, coupled with a newer council, the project has still faced challenges, largely around necessary zoning changes and application delays.

“This project is going to be good for the neighborhood. It’s good for the city, and we can apply or build a lot more than what we’re asking,” he said. “The site can fit a minimum of 120 units, but we’re not doing that. We’re just building what we’ve been applying for all along.”

The owner submitted the builder’s remedy application last week, as the city had not yet adopted its latest version of the housing element. But less than a week later, on Wednesday, March 21, the Foster City Planning Commission and City Council voted to adopt the housing element, which is now pending official state certification. 

Chris Elmendorf, law professor at the University of California, Davis, said a gray area remains as to when exactly builder’s remedy rights can be invoked. However, based on court rulings from other cities throughout the state in the last few months, it’s fair to conclude that if a preliminary application was submitted prior to the city adopting a substantially compliant housing element, the project can go forward, even if the city votes for adoptions and gets certified, hypothetically, the next day. 

“Otherwise, that’s like saying, ‘I’ve paid my taxes because I filled out the forms, but I haven’t actually submitted them with a check,’” Elmendorf said.

This latest housing element cycle, which runs about every seven years, has been an adjustment for many California cities, as the state has since cracked down on those which are stifling development in the wake of an affordable housing crisis. According to the state’s Regional Housing Needs Allocation — which determines the exact number of homes each city must plan for — Foster City must plan for about 1,900 new housing units over the next seven years, 43% of which must be for low- or very-low-income households.

This latest round, the 2023-31 cycle, is the first time the builder’s remedy has truly been put to the test and, so far, Elmendorf said it seems like it’s given developers leverage and pushed cities to make necessary changes, even if changes are made to the originally proposed project. 

Other Peninsula jurisdictions have also had to reckon with the rule. San Mateo received an application last year for a large downtown development, although the site remains vacant. Menlo Park and Palo Alto have also received such proposals, with Pacifica receiving about five.

The city did not respond to comment on the validity of the builder’s remedy proposal, although Mayor Patrick Sullivan said he hopes the Beach Park Boulevard project can get off the ground in the near future. 

“I want the owner to be able to develop that property,” he said. “He’s had a challenging time.”

Since its recent adoption, the city will submit the updated housing element to the state’s Department of Housing and Community Development, which will then officially certify the plan.