Uncertain future at builder’s remedy site in San Mateo

The builder’s remedy comes from the state Housing Accountability Act and requires cities without certified housing elements to approve any project, regardless of base zoning, as long as it has 20% low-income units. The state review of San Mateo’s housing element plan found that the city still needs additional revisions to comply with state law, according to a March 27 letter from the Department of Housing and Community Development. A housing element is a blueprint for housing goals and policies around future development, and the City Council adopted it in January. The need for additional revisions spurred Windy Hill to send a letter of inquiry to the state about the builder's remedy pre-application process, although it has not yet filed a formal pre-application using the builder's remedy as part of the city's local planning process, the city said.

Field said city staff has been diligent in processing the pre-application, but he has not gotten any definitive feedback he needs from the City Attorney’s Office about housing element compliance and if it is legally feasible to move forward in the process. Field said the city could argue it complies through self-certification, and the builder’s remedy law would not apply. Cities not certified by HCD can adopt the housing element and release their own compliance findings. However, a judge could find it out of compliance through legal action. Fields said self-certification would likely mean the builder’s remedy pre-application cannot move forward because there is no legal basis for it.

“We are not sure what position the city is taking yet,” Field said. “They haven’t really told us anything.”

San Mateo City Attorney Prasanna Rasiah said the project application status was very preliminary, and he could not provide definitive answers until further in the process.

“We will have to see if they submit applications that follow our process,” Rasiah said. “It’s too early to say at this stage to say what would be the end result.”

When asked for more information about the developer’s concerns, the City Attorney’s Office declined to provide additional comment.

Windy Hill filed the preliminary application in March using elements of Senate Bill 330. The bill went into effect in 2020 and restricted new regulations that would impede new housing development. The builder’s remedy refers to a chapter of SB 330 that says if the city doesn’t have a compliant housing element, it can be used to avoid local zoning requirements. The development, called Block 20, would have 353 units, 161 studios, 141 one bedroom and 51 two bedrooms. There would be 71 affordable units distributed through all three unit types. The building would be eight stories tall, at around 85 feet, one story taller than Kiku Crossing. The proposal would tear down all existing on-site structures on the block of East Fourth Avenue, South Claremont Street, East Fifth Avenue and South Delaware Street.

Field has received split community support about the new project, given the suggested density. However, he still wants to use the builder’s remedy if allowed. Field said the application process still needs a path to entitlement findings, and the only way to entitlement is through the builder’s remedy. Field said there is some ambiguity about the next steps, putting the builder’s remedy project at risk. Field hopes to hear from the city in the next 30 days about how to proceed.

If the builder’s remedy application is not feasible, Windy Hill still has another application at the same site that would call for 143,000 square feet of office space and 86 residential units and meets city criteria. Businesses on the block include the San Mateo Japanese American Community Center, Safari Kid-San Mateo and Taco Bell. A demolished 76 Gas Station is also at the site. Project developer Windy Hill is working with Safari Kid and the community center on finding new locations in the area.

Note to readers: This story has been updated to note Windy Hill has sent a letter of inquiry to the state about using the builder's remedy, but has not officially yet filed a formal pre-application using the builder's remedy as part of the city's local planning process.