ATT 4 - Public Comment — Mountain View City Council, April 8, 2025

From:

To: Penollar, Krisha
Subject: 294-296 Tyrella Avenue
Date: Wednesday, March 12, 2025 3:38:58 PM
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Hello,
My comments are as follows.

I am totally against this project.

1. It will create congestion (more traffic)

2. Parking will be an issue because as commonly know each unit could have up to 2 vehicles. Approximately 170 vehicles half could end up parking on the streets.

3. Seven story building will take away sun from our garden area.

4. Esthetically it will not fit into our neighborhood. The tallest complex is 3 stories.

The 7 story building would ruin our neighborhood.

Do Not Approve this project.

Respectfully,
Christina
Attachment 4
From:

To: City Council
Subject: 294-296 Tyrella Avenue Builder"s Remedy
Date: Saturday, March 29, 2025 8:08:18 AM
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Dear Council,
May I simply add my two cents as a neighborhood resident for the past 22 years? I think that the size of this project does not fit nor does it belong at this particular location.

Thank you for allowing me to chime in. Thank you for all your efforts on our city's behalf.

Charlotte M Palmer
(Senior) Resident

From:

To: City Council
Cc: Penollar, Krisha
Subject: Geotechnical Oversight – 294-296 Tyrella Project Date: Monday, March 31, 2025 8:00:52 AM
Attachments: Screenshot 2025-03-30 at 1.34.52 PM.png
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Dear City Council Members (& Krisha Penollar),
In addition to my prior comments, I’m writing to express concern regarding seismic safety compliance related to the proposed seven story development at 294–296 Tyrella Avenue. The GEOTECHNICAL REPORT section of the Draft Findings Report confirms the requirement for a geotechnical investigation, yet states: “The report will be submitted to the City during the building plan check…” (Draft Findings Report, p. 8) This implies that the required geotechnical report will be submitted after project approval, rather than prior to approval, as clearly required by California law.

Under California Public Resources Code §2697(a), part of the Seismic Hazards Mapping Act explicitly states: “Cities and counties shall require, prior to the approval of a project located in a seismic hazard zone, a geotechnical report defining and delineating any seismic hazard…” “Each city and county shall submit one copy of each approved geotechnical report, including the mitigation measures, if any, that are to be taken, to the State Geologist within 30 days of its approval of the report.” The development site is located in a liquefaction hazard zone, as identified in the California Geological Survey’s official mapping tool EQ Zapp, which confirms the project’s inclusion in a mapped seismic hazard area (screenshot attached).

This concern is especially pressing given the unusual height of the proposed building —a seven-story structure in a predominantly low-rise residential neighborhood. The scale and height introduce additional structural risk in a known liquefaction zone, where ground instability during an earthquake could be particularly hazardous for taller buildings.

The clear intent of the law is to protect public safety by requiring that seismic risks be thoroughly understood and mitigated prior to development approval—not as a post- approval process. Failure to require the geotechnical report prior to project approval not only raises serious safety concerns, but may also expose the City to avoidable legal and procedural risk, particularly in light of clear statutory requirements. I respectfully urge the City to carefully consider these obligations and ensure full

compliance with California Public Resources Code §2697(a) before advancing the project.

Thank you for your attention to this matter.

Sincerely,
Tim Palmer

From:

To: City Council
Subject: I support the 7-story development on Tyrella and Middlefield Date: Saturday, March 29, 2025 10:45:55 AM
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Dear City Council,
I strongly support the 7-story development planned for Tyrella and Middlefield and more higher-density housing in general. I live in the neighborhood and belong to a generation that is facing extremely expensive housing costs, driven largely by NIMBYism. I believe that the only way to ameliorate the situation for my daughter’s generation is for vastly more housing to be built. I want my neighborhood to do our part to build our way out of this housing crisis.

Sincerely,
Alisa Moskaleva.

From:

To: Penollar, Krisha
Subject: Support condos at 294-296 Tyrella Ave
Date: Tuesday, April 1, 2025 11:49:59 AM
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Senior Planner Krisha Penollar,
Dear Mayor Kamei and Councilmembers:

As a Mountain View resident who had to live here nearly a decade to be able to afford to buy a home for our family, I am writing to support the Builders' Remedy project at 294 & 296 Tyrella Ave. It provides 80 units of much-needed ownership housing, with 20% of the units set aside for low-income residents.

The project is located close to major job centers, many of which are easily reachable by bicycle along the Stevens Creek Trail. It's also an easy walking distance from the East Whisman Precise Plan's future Village Center and close to downtown. The project’s design encourages bicycle over car use by providing generous bike parking, including electric bike charging. It also unbundles car parking from rent, which incentivizes one- or no-car households. An on-site corner grocery store and cafe align with the popular vision for neighborhood-serving retail in R3 zones.

We need more innovative projects like this to encourage neighborhood connectivity. We need more housing supply as the cost of housing has become untenable. Lastly, we need the low- income housing for our neediest residents.

Please support this housing project.

Thank you,
Caroline Charrow

From:

To: City Council
Cc: Scott Atkinson
Subject: April 8 Agenda: Opposition to gigantic 7 story, 85 unit apartment building proposed for the corner of Middlefield Road and Tyrella Ave.

Date: Monday, March 17, 2025 4:45:54 PM
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City Council ,
April 8 Agenda: Opposition to gigantic 7 story, 85 unit apartment building proposed for the corner of Middlefield Road and Tyrella Ave.

As I will not be able to attend, let me lodge my Opposition to the gigantic 7 story, 85 unit apartment building proposed for the corner of Middlefield Road and Tyrella Ave.

We live within a block or so of this proposed project--as property owners, voters and taxpayers.

The proposal (even with conditions proposed by zoning review) is in NO way close to aligning with or reasonably preserving the character of our neighborhood (even allowing for growth and changes in the types of structures).

Along with the 19 immediate neighbors that I am connected with, all of us oppose the scope & scale of this project.

Any official who supports, even a modified version, of this will be accountable.

Thank you for your service to the actual residents & community—from whom you have been entrusted.

Thank you,
Scott & Kim Atkinson
Scott C. Atkinson

From: Jessica Gandh
Sent: Saturday, March 29, 2025 6:49 PM
To: City Council <[email protected]>; [email protected] <[email protected]>; , City Clerk <[email protected]> Cc: Soosh Gandhi
Subject: Comment on Builders Remedy Project on Tyrella Ave & Middlefield Road CAUTION: EXTERNAL EMAIL - Ensure you trust this email before clicking on any links or attachments.

Dear City Council Members,
I am writing as a concerned neighbor regarding the proposed Builders Remedy project at Tyrella Ave and Middlefield Road. The size and scope of this building does not fit in the location designated not only because it is surrounded by 1 and 2 story dwellings but also because Tyrella Ave itself is a small and crowded road already. Adding a seven story residential building to this neighborhood is going to add traffic congestion, school overload (Vargas elementary was not built to allow many more students than it already has) and ongoing upset to the current residents that will be dominated by something out of character to this smaller city neighborhood.

Why can’t Mountain View join the charge with Palo Alto to push back on these builders remedy projects that threaten to kill the ambiance and good neighborliness that Mountain View tries to build? See article below
https://www.mv-voice.com/housing/2025/03/24/palo-alto-may-lead-effort-to-restrict-builders- remedy/
I urge the city council to do everything in your power to push back against the 7 stories, try to negotiate a more neighbor friendly building or find a better location in the city for this project that

makes more sense. Please don’t let monstrosities like this go up in our city to the detriment of those current residents who will be over shadowed by its presence. And if not at all possible to move it, please work with the neighbors and builders to create a harmonious design that allows for landscaping, setbacks, ease of traffic flow (entrance to parking on Middlefield, not Tyrella) and neighbor-friendly building requirements for noise, cleanliness, disruption.

Thank you for your time and understanding.

Jessica Gandhi
Neighbor at
Sent from my iPhone

From:

To: City Council
Cc: Scott Atkinson
Subject: Fwd: April 8 Agenda: Opposition to gigantic 7 story, 85 unit apartment building proposed for the corner of Middlefield Road and Tyrella Ave.

Date: Monday, March 17, 2025 5:18:02 PM
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Dear City Council,
I join Scott Atkinson in opposing the scope and scale of the proposed 7-story, 85-unit apartment building at the corner of Middlefield Road and Tyrella Ave. This project drastically conflicts with the character of our neighborhood.

Sudhir Kada
Begin forwarded message:

From: Scott Atkinson
Date: March 17, 2025 at 4:45:46
PM PDT
Subject: April 8 Agenda: Opposition to gigantic 7 story, 85 unit apartment building proposed for the corner of Middlefield Road and Tyrella Ave.

City Council ,

April 8 Agenda: Opposition to gigantic 7 story, 85 unit apartment building proposed for the corner of Middlefield Road and Tyrella Ave.

As I will not be able to attend, let me lodge my Opposition to the gigantic 7 story, 85 unit apartment building proposed for the corner of Middlefield Road and Tyrella Ave.

We live within a block or so of this proposed project--as property owners, voters and taxpayers.

Along with the 19 immediate neighbors that I am connected with, all of us oppose the scope & scale of this project.

Any official who supports, even a modified version, of this will be accountable.

Thank you for your service to the actual residents & community—from whom you have been entrusted.

Thank you,

Scott & Kim Atkinson

Scott C. Atkinson

From: , Planning Division
To: Penollar, Krisha
Subject: FW: 294-296 Tyrella Ave Housing Development Project Date: Thursday, March 13, 2025 8:28:30 AM

Nancy Woo-Garcia
Office Assistant /CDD-Planning
Main 650-903-6306

From:

Hui Wang
Sent: Wednesday, March 12, 2025 8:12 PM
To: , Planning Division <[email protected]> Subject: 294-296 Tyrella Ave Housing Development Project

CAUTION:

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Dear Mountain View zoning Administrator and City Staff, I am writing to raise my concerns towards the 294-296 Tyrella Ave Housing Development. We live 2 minutes’ walk from the site starting in 2022. And I agree with other neighbors that a 7 story structure with 3 stories of parking will be a disaster for the neighborhood. On the other hand, I totally welcome 2-3 story development with a controlled affordable housing ratio to minimum. Here are the reasons:

Almost all the buildings in the community are fewer than 2 stories, forming a cozy, welcoming and equity environment for the people living here. The 7-story mega building will overwhelmingly destroy everything we treasured here. Walking along the street, there will be no greetings from neighbors, no children and pets playing around, no flowers and lawns, but just noise and smog from the 3-story garage, let alone the sunshine we will lose, and the increased traffic posing danger to the schools just one block away.

Imagining what the image of the city and of our community will be like if this proposal is approved. Willing to sacrifice anything for money?
I believe living justice is important and always welcomes a more diverse community, thus a 20% ratio of affordable housing is good for me. I also believe it’s important to balance the need for affordable housing with maintaining the quality of life for existing residents, thus I strongly oppose the idea of further increasing that ratio. We spent all our savings to purchase a 1.6-million-dollar condo, and live paycheck by paycheck each month. Paying $1,3000 property tax every year, if we are going to have a worse living environment eventually, we have to say that as residents in the community, our voice is not heard, and our interest is not respected by the city.

The city of Mountain View is considered a great place for young professionals to chase their dreams, having such off-scale buildings with huge parking against street in a once quiet community is sending a wrong signal that the city is no longer protecting the community's working professionals and taking residents as the first priority, making Mountain View much less desirable for people to move in.

Heritage tree removal is understandable given they will significantly reduce constructable site area for the developer. In return the developer should replant trees and provide visual buffer/ landscape and lighting to ensure city scape and street safety.

In conclusion, I would really welcome a 2-3 story development on the site with trees and new landscape, to make our community a better place.

Thank you so much for listening to our request and we really appreciate your consideration!

Kind regards,

Hui
From: , Planning Division
To: Penollar, Krisha
Subject: FW: Builder"s Remedy Project at 294-296 Tyrella Date: Wednesday, March 12, 2025 4:05:59 PM
Importance: High

Nancy Woo-Garcia
Office Assistant /CDD-Planning
Main 650-903-6306

From:

GARY ROSEN
Sent: Wednesday, March 12, 2025 3:47 PM
To: Administrative Zoning Hearing <[email protected]> Subject: Builder's Remedy Project at 294-296 Tyrella

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To the Mountain View Zoning Administrator and Subdivision Committee:

I am Gary Rosen, a longtime resident of Mountain View who has lived on Murlagan Avenue off Whisman Rd. for nearly 30 years.

I am writing to oppose the proposed Builder's Remedy development at 294-296 Tyrella Ave.

This project is completely out of scale and character for the neighborhood and will cause siginificant strain on parking and traffic which I do not think have been explored in depth.

It is not really that close to the
light rail which is supposed to alleviate traffic concerns.

The people there will have cars and I do not
believe the parking and traffic issues have been fully addressed.

Above all it is a massive structure
towering over small homes in a residential area of mainly one and two-story buildings with no intention of trying to blend in with the neighborhood.

There is unquestionably a need for more housing in Mountain View and the area in general. However I would point out that in contrast to the accusations by some of "NIMBY" the residents of the area worked with the City to support and approve a nearby project in East Whisman that will provide *thousands* of new dwellings for Mountain View.

Futhermore there has been a steady stream of "infill" projects in the Whisman/Tyrella area which have increased the housing supply without changing the character of the neighborhood.

The Tyrella project will have only a small impact on the overall housing supply while having a huge negative impact on the surrounding neighborhood.

I believe Mountain View can provide housing while
maintaining the ambience of the existing residential neighborhoods.

In fact the City is already doing this
and does not need this project.

It should be rejected.

Thank you for giving consideration to my views on
this.

Sincerely,

Gary Rosen

Mountain View, CA 94043
From: , Planning Division
To: Penollar, Krisha
Subject: FW: Concern for 294-296 Tyrella project!
Date: Thursday, March 13, 2025 8:28:14 AM

Nancy Woo-Garcia
Office Assistant /CDD-Planning
Main 650-903-6306

From:

Saruul Barrios
Sent: Wednesday, March 12, 2025 8:53 PM
To: , Planning Division <[email protected]> Subject: Concern for 294-296 Tyrella project!

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Dear city planners,

This is our concern regarding the 294-296 Tyrella Ave Housing Development, 2 min walk from us on and our way to the nearest school.

This is a too small site to build 7 story apartment with 85 Units, 3 stories of parking.

As a resident of this neighborhood it’s raising concern the development will have negative impact on living quality, safety and housing price for our community. We are writing to express our concern and against this proposal!

Sincerely,

Resident of

Saruul Barrios

From: , Planning Division
To: Penollar, Krisha
Subject: FW: Tyrella Ave Proposed Project
Date: Wednesday, March 12, 2025 12:24:26 PM
Importance: High
ZA comments

Nancy Woo-Garcia
Office Assistant /CDD-Planning
Main 650-903-6306

From:

Clarice Arne
Sent: Wednesday, March 12, 2025 12:21 PM
To: Administrative Zoning Hearing <[email protected]> Subject: Tyrella Ave Proposed Project

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Good Afternoon,

I am writing to you today to ask that you keep the zoning in the Tyrella/Middlefield and surrounding areas to 2-3 story level multi-family buildings.

I am against the proposed 7
story high rise in my neighborhood. My condo at 50 East Middlefield Road is in a 2 story complex.

A 7-story building does not fit into our neighborhood at all.

I believe a 2-3 story
building would be much more appropriate.

Please stand strong for the residents and owners of Mountain View and do not let this developer put 85 units on a .48 acre parcel.

It is obvious that he is only interested in
making a large profit from this development and does not really care about the feel of this lovely, wooded, peaceful yet still somewhat densely populated area.

There are a lot
of condos and apartments along this corridor and a 2 or 3 story structure would fit in and be much more appropriate for this area.

I would invite him to offer a similar structure at a 2-3 story level.

Thank you for listening to my request and for all you do in keeping the City of Mountain View a very lovely place to live.

Best regards,
Clarice Arne

Owner at

From:

To: Penollar, Krisha
Subject: Re: [wwna] Fwd: Public Hearing Notice: Joint Subdivision Committee and Administrative Zoning Hearing Date: Wednesday, March 12, 2025 8:29:59 PM
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Hello Krisha,
As a homeowner

at the Middlefield Meadows (very near the corner of Tyrella and E. Middlefield) I strongly object to building a 7 story building in our neighborhood of 1-2 story homes and condominiums.

Seven stories would be a monstrosity, especially given the neighbors are 1 story homes. The other objection is that 85 units will generate a considerable amount of new cars trying to park in the neighborhood streets. This builder's proposal should be rejected. If these are not good enough reasons, then what can the city advise to the local residents that live nearby to fight this proposal?

Regards,
Rob Corcoran
15+ years home owning resident of the Wagon Wheel neighborhood, and 20+ years as a Mountain View resident.

On Sat, Mar 1, 2025 at 9:28 AM nicky sherwood <[email protected]> wrote:

Here is some information on the seven story, 85 Unit development proposal at 294-296 Tyrella.

It will be going back to the Joint Subdivision
Committee and Administrative Zoning Meeting On March 12. The agenda staff report and partial plans for the proposal be available on Friday before The meeting. Please see the link below.

This proposal may have an impact on parking on Tyrella, Flynn, and Sherland plus additional traffic. ---------- Forwarded message ---------
From: Penollar, Krisha <[email protected] >
Date: Fri, Feb 28, 2025 at 4:22 PM
Subject: Public Hearing Notice: Joint Subdivision Committee and Administrative Zoning Hearing To:

294-296 Tyrella Avenue, APNs 160-32-002 & 160-32-001

PUBLIC HEARING NOTICE

Joint Subdivision Committee and Administrative Zoning Hearing NOTICE
IS HEREBY GIVEN that the City of Mountain View Zoning Administrator and Subdivision Committee will hold a joint public hearing on Wednesday, March 12, 2025, at 4:00 pm in the Plaza Conference Room, Second Floor, Mountain View Civic Center, 500 Castro Street
, at which time all interested parties may be heard regarding the following project:

PROPOSED PROJECT
LOCATION: 294-296 Tyrella Avenue, APNs 160-32-002 & 160-32-001

(Builder’s Remedy Project)
APPLICANT:

Forrest Linebarger for Tower Investment, LLC
APPLICATION NO:

PL-2023-102 / PL-2023-103 / PL-7462

This email was sent to Email Address using govDelivery Communications Cloud on behalf of: City of Mountain View · 500 Castro St. Mountain View, CA 94041 HEARING DATE: Wednesday, March 12, 2025

Request for a Development Review Permit, Heritage Tree Removal Permit, and Tentative Map to demolish an existing single family house to construct a seven-story, 85-unit residential condominium development (20% affordable) which includes two levels of a parking garage on a 0.48-acre project site; and a recommended determination that the project is categorically exempt pursuant to Section 15332 ("In-Fill Development Projects") of the CEQA Guidelines. This project is located on the southwest corner of Tyrella Avenue and East Middlefield Road in the R3-1 (Multiple-Family Residential) district.

If you have comments or questions about this project, please contact the project planner, Krisha Penollar at (650) 903-6306 or at [email protected] .

Draft recommendations and associated documents will be available for review the Friday before the hearing at mountainview.legistar.com.

This meeting will be held with a virtual component and broadcast live at mountainview.legistar.com and on YouTube at MountainView.gov/YouTube. Members of the public wishing to provide comments to the ZA may: 1) send an email to [email protected]
2) join the Zoom Webinar online at mountainview.gov/meeting or call 669-900-9128 and enter Webinar ID 85261011237; or 3) attend the meeting in person in the Plaza Conference Room, Second Floor at 500 Castro Street, Mountain View, CA 94041 . Please consult the meeting agenda, which will be available for review the Friday before the meeting at mountainview.legistar.com. Meeting dates and times are subject to change. Please check the final published agenda online at the web address listed above or view the posted agenda located outside the front door of City Hall at 500 Castro Street
to verify the meeting date, times, location, and agenda items.

To arrange an accommodation under the Americans with Disabilities Act for this hearing, please call (650) 903-6306.

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From:

To: Penollar, Krisha
Subject: 7 Story Building on Middlefield
Date: Monday, March 10, 2025 3:11:28 PM
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Just heard about this proposal and it does NOT seem to fit within the neighborhood. This will block the neighbors view, create more traffic, are the existing utilities even up to date to support this complex?
If Mountain View keeps building these high structures we should change the city name to BUILDING View as that is all we will see.

Steve Warr

Mar 11, 2025

Mountain View Zoning Administrator
500 Castro St.

Mountain View, CA 94041

Re: Proposed Housing Development Project at 294-296 Tyrella Ave

By email: [email protected]

CC: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]

Dear Mountain View Zoning Administrator and City Staff,

The California Housing Defense Fund (“CalHDF”) submits this letter to request that the Zoning Administrator and city staff comply with their obligations to process the proposed 7-story, 80-unit, 20% affordable condominium building at 294-296 Tyrella Avenue under all relevant state and federal laws.

Under the HAA,1 a city may not disapprove a qualifying affordable housing project (i.e., a housing development project that provides at least 20 percent of the total units to lower households, as defined by Health and Safety Code Section 50079.5) on the grounds it does not comply with the city’s zoning and general plan if the developer submitted either a statutorily defined "preliminary application" or a "complete development application" while the city's housing element was not in substantial compliance with state law. (See Gov. Code, § 65589.5, subds. (d)(5), (h)(5), (o)(1).2) This statutory provision temporarily suspends the power of non-compliant municipalities to enforce their zoning rules against qualifying affordable housing projects. (See, e.g., California Housing Defense Fund v. City of La Cañada Flintridge, Case Number: 23STCP02614 (attached), for a recent court decision affirming the plain language of the statute in this regard.) Mountain View’s Housing Element was not in 2 These code section numbers correspond to the HAA as it existed when the preliminary application for the project at issue was submitted (i.e. before AB 1893 went into effect). 1 AB 1893, effective January 1, 2025, has amended the “Builder’s Remedy” provisions of the HAA.

However, the AB 1893 allows for vested Builder’s Remedy applications to proceed under the previous version of the law.

360 Grand Ave #323, Oakland 94610
www.calhdf.org

substantial compliance with state law when the preliminary application under SB 330 was submitted. The City must therefore allow the project to be developed as proposed.

Additionally, the project is exempt from state environmental review under the Class 32 CEQA categorical exemption (In-Fill Development Projects) pursuant to § 15332 of the CEQA Guidelines, as the project is consistent with the applicable general plan designation and all applicable general plan policies as well as the applicable zoning designation and regulations; the proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses; the project site has no value as habitat for endangered, rare or threatened species; approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality; and the site can be adequately served by all required utilities and public services. Recent caselaw from the California Court of Appeal affirms that local governments err, and may be sued, when they improperly refuse to grant a project a CEQA exemption or streamlined CEQA review to which it is entitled. (Hilltop Group, Inc. v. County of San Diego (2024) 99 Cal.App.5th 890, 911.)

CalHDF notes that draft condition of approval #1 requires construction to commence within two years or the permit will become null and void. This condition appears to be based on Mountain View zoning code, section 36.56.65:

Time limits. Unless outlined otherwise in conditions of approval, any permit or entitlement not used within two (2) years of approval shall become void. For phased projects, a permit or entitlement becomes void if there has been no significant construction activity for a period of one (1) year, notwithstanding previous construction activity. The permit shall not be deemed "used" until the permittee has actually obtained a building permit and commenced construction or has actually commenced the permitted use on the subject property in compliance with the conditions of approval.

However, the City may not apply its zoning code to this project, given that it is a Builder’s Remedy project, as discussed supra. The City therefore may not apply this two year time limit. Assuming that the City attempts to enforce this provision of its code, a refusal to grant an extension to the two-year time limit would constitute a denial of the project pursuant to the HAA and would require appropriate health and safety findings pursuant to Government Code section 65589.5, subdivision (d).

The City should therefore amend its conditions of approval to remove this condition as well as other conditions that attempt to apply local zoning requirements.

⬢⬢⬢

2 of 3

As you are well aware, California remains in the throes of a statewide crisis-level housing shortage. If we do not allow sufficient housing development, more and more Californians will become and remain homeless. CalHDF urges the City to approve this builder’s remedy project, as is required by law.

CalHDF is a 501(c)(3) non-profit corporation whose mission includes advocating for increased access to housing for Californians at all income levels, including low-income households. You may learn more about CalHDF at www.calhdf.org.

Sincerely,

Dylan Casey
CalHDF Executive Director

James M. Lloyd
CalHDF Director of Planning and Investigations

3 of 3

PATTERSON & O’NEILL, PC

235 Montgomery Street, Suite 950
San Francisco, CA 94104
Telephone: (415) 907-9110
Facsimile: (415) 907-7704
www.pattersononeill.com
March 11, 2025

VIA EMAIL

Administrative Zoning and Subdivision Committee
500 Castro Street
Mountain View, CA 94041

Re: 294-296 Tyrella Avenue Development Application
Permit Nos. PL-2023-102 & PL-2023-103

Dear Committee Members:

Our office represents Forrest Linebarger, manager of Tower Investment LLC. Tower Investment applied for a housing development project at 294-296 Tyrella Avenue before the City adopted a substantially compliant housing element, and therefore qualifies for the protections of Gov. Code § 65589.5(d)(5), commonly referred to as the “Builder’s Remedy.” The Builder’s Remedy significantly limits the City’s review authority over projects that restrict at least 20% of the units as affordable to low-income households, as is the case here.

The City is required to approve the project as submitted and proposed by the applicant without the nearly 200 conditions of approval that staff has proposed. That said, Mr. Linebarger has worked cooperatively with City staff throughout the application process and appreciates the modifications that have been made to many of the most onerous conditions.

Mr. Linebarger is willing to voluntarily accept most of the proposed conditions, except those that would violate the project’s vesting rights, make the project infeasible, cause unnecessary delay or increases in costs, and/or give the City unfettered discretion to disapprove the building permit plans. In particular Mr. Linebarger demands modifications to the proposed expiration date (Condition Nos. #1 and #17); the BMR monitoring requirement (Condition No. 60), and the conditions that require further discretionary approvals (Condition Nos. 13, 47, 134, 164, 189, and 190).

We urge the City to modify the conditions of approval as suggested by the applicant or Mr.

Linebarger may be left with no choice but to challenge the City’s actions in court.

A. The Proposed Conditions Violate the Project’s Vesting Rights

In 2019, the Legislature enacted the Housing Crisis Act to prohibit what the Senate Floor Analyses described as “the most egregious practices” by local governments that prevent the development of new housing. Specifically, the HCA added a new “preliminary application” Administrative Zoning and Subdivision Committee
March 11, 2025

Page 2 ends

process designed to “stop[] them from changing the rules on builders who are in the midst of going through the approval process.” Gov. Code Section 65941.1 allows a housing developer to submit a preliminary application, which under the HAA “vests” the “ordinances, policies, and standards” in effect at the time a complete preliminary application is submitted. (Gov. Code § 65589.5(o)(1).) The HAA defines “ordinances, policies, and standards” broadly to include “general plan, community plan, specific plan, zoning, design review standards and criteria, subdivision standards and criteria, and any other rules, regulations, requirements, and policies of a local agency . . . .” (Id. subd. (o)(4).)

The HAA specifies that once a preliminary application is submitted and vesting rights are secured, there are very limited circumstances in which vesting rights no longer apply to a project.

The HAA states that vesting rights are no longer valid if the “housing development project has not commenced construction within two and one-half years . . . following the date that the project received final approval.” (Id. sub. (o)(2)(D).) The law defines “final approval” to mean has received all necessary approvals to be eligible to apply for, and obtain, a building permit or permits” and all applicable deadlines for challenging the approval have expired. (Id.)

The City’s conditions, however, attempt to cut off the applicant’s vesting rights by proposing an expiration date of only two years, and calculating the two-year expiration date from the time of this permit approval, rather than from the date the applicant had received all necessary approvals to obtain a building permit. Prior to obtaining a building permit, the applicant still needs approvals for a final subdivision map, a lighting plan, a landscaping plan, construction parking plan, sprinkler and fire alarm system, the construction level building plans, and more. In short, the City’s proposed expiration condition violates the project’s vesting rights.

In addition, Condition #63 states that the project must comply not just with state building code requirements, but the City Local Amendments and Green Building Code in effect at the time of building permit submittal – rather than the time the preliminary application was submitted as required by the HAA. As noted above, the vesting rights provision is broadly worded to include not just zoning and general plan standards, but “any other rules, regulations, requirements, and policies of a local agency.” (Id. subd. (o)(4).) Condition #63 is similarly a clear attempt to circumvent the project’s vesting rights.

Please be advised that the HAA explicitly states that a local agency commits a violation if it “required or attempted to require a housing development project to comply with an ordinance, policy, or standard not adopted and in effect when a preliminary application was submitted.” (Gov. Code § 65589.5(k)(1)(A)(i)(III).) In other words, Mr. Linebarger does not need to wait until the permit expires to take legal action against the City for attempting to eliminate the project’s vesting rights. Our firm has successfully litigated multiple cases confirming that any attempts to circumvent vesting rights, even before a project application is deemed complete, constitutes a violation of state law that may carry significant fees and penalties. (See Jha v. City Administrative Zoning and Subdivision Committee
March 11, 2025

Page 3 ends

of Los Angeles (LASC Case No. 23STCP03499; Yes In My Back Yard v. City of Los Angeles (LASC Case Nos. 24STCP00070; 24STCP00385; and 24STCP00524.)

We respectfully request that Condition #1 be modified to change the expiration date from two years from the date of approval to two and one-half years following the date that the project received all necessary approvals to be eligible to obtain a building permit or permits and all applicable deadlines for challenging the approval have expired.

B. The Application Must Be Approved as Submitted

Under Builder’s Remedy provision (subdivision (d)(5)), a local government cannot deny a housing development project for low-income households, even if the project is inconsistent with the jurisdiction’s zoning and general plan, unless the local government can make written findings, supported by a preponderance of the evidence in the record, that it has adopted a housing element in substantial compliance with the Housing Element law. The HAA makes clear that the intent of the Builder’s Remedy is to facilitate and accommodate the development as proposed by the applicant in the development. (Id. subd. (f)(1).) The Legislature also recently enacted AB 1893, which merely confirmed that the entire purpose of the Builder’s Remedy is to ensure that projects are approved as proposed by the applicant. (Id. subd. (f)(6)(B).)

The City did not have a substantially compliant housing element at the time the application was submitted, and therefore the project must be approved as submitted regardless of any zoning or general plan inconsistency. Here, the City’s conditions unlawfully modify and amend the project as proposed by the applicant, in violation of the HAA.

Specifically, the applicant submitted a Below Market Rate (“BMR”) Alternative Mitigation Program to address the state law requirement to ensure that the restricted units are offered to qualifying households at an affordable rate. The applicant has proposed to select an administrator of the BMR program, who will be charged with selecting occupants, certifying eligibility, and verifying compliance on an annual basis. The applicant is willing to accept the requirement to record a deed restriction to ensure the units remain affordable, but Condition #60 rejects the applicant’s proposed program and instead authorizes City staff to monitor compliance.

To be clear, the applicant has no issue with verifying compliance with the affordability requirements of state law. The applicant has proposed doing so and will provide compliance reports to the City. However, the applicant is under no obligation to participate in the City’s typical process for monitoring its inclusionary housing program. The proposed affordable units are being provided to comply with state law, not local inclusionary requirements.

We note that City staff have reached out to the Department of Housing and Community Development (“HCD”) regarding this very issue. Our office spoke with HCD Senior Housing Policy Specialist Stephanie Reyes in December 2024, who confirmed and agreed with the Administrative Zoning and Subdivision Committee
March 11, 2025

Page 4 ends

applicant that the project is under no obligation to participate in the City’s compliance program and may propose an alternative means to comply with state law. We understood that Ms. Reyes was going to send this same message to City staff, yet staff still proposes a condition that unlawfully rejects the Applicant’s proposed plan and requires the project to participate in the City program. This portion of Condition #60 must be modified, as confirmed by HCD.

In short, the City’s proposed conditions are unlawful as they impose standards on a builder’s remedy project that fails to accommodate the project as proposed. Subdivision (d) not only prohibits disapproval, but also any conditional approval that “renders a project infeasible.” The HAA defines feasibility as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (Gov. Code § 65589.5(h)(1).) The HAA confirms that if a local agency “conditioned its approval in a manner rendering it infeasible for the development,” this constitutes a violation of the HAA and that local agencies bear the burden of proof. (Gov. Code § 65589.5(k)(1)(A)(i).)

Several conditions also impact the feasibility of the project. Specifically, Condition No. 41 requires a stop work order and provides for significant penalties for incidental damage to trees during construction. While the applicant is willing to provide replacement trees for any incidental damage, stopping work for an indeterminate amount of time and imposing significant penalties for such damage significantly increases construction costs and renders the project infeasible. In addition, the applicant has repeatedly identified several of the City’s Reach Code Requirements that are not feasible, such as the requirement to supply 100 percent of energy use through Photovoltaic panels. These conditions must be modified to ensure project feasibility.

C. The City Cannot Impose Conditions Based on Subjective Standards The HAA greatly limits a local government’s ability to deny a housing development project that complies with applicable, objective general plan, zoning, and subdivision standards, and prohibits local governments from applying subjective standards. (Gov. Code § 65589.5(j)(1)(A)- (B); see also Cal. Renters Legal Advocacy & Educ. Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 844.) The HAA defines “objective” as “involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.” (§ 65589.5(h)(8).) The test to determine whether a standard is objective is whether there is a single standard “knowable in advance, to be applied to all.” (Cal. Renters Legal Advocacy & Educ. Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 843.) Many of the proposed conditions fail to meet this test of objectivity as the conditions give unfettered discretion to public officials to make a subjective determination whether to approve certain plans.

Administrative Zoning and Subdivision Committee
March 11, 2025

Page 5 ends

Specifically, Condition Nos. 13, 47, 134, and 164 require the applicant to submit signage plans, lighting plans, parking plans, encroachment permit plans, and utility plans subject to discretionary approval of the Zoning Administrator without any objective standard for issuing an approval.

Moreover, we note that the applicant has already submitted proposals for these plans. While the applicant does not oppose submitting more detailed construction level versions of the proposed plans, the plans must be approved so long as the plans are consistent with the project as submitted and proposed by the applicant, as explained above.

Finally, Conditions 189 and 190 appear to be brand new conditions requiring “full trash capture” both on and offsite. The City failed to previously identify any purported inconsistency with the City’s “Long Term Trash Reduction Plan,” and therefore the project must be deemed consistent with any requirements of this plan. (Gov. Code § 65589.5(j)(2)(B).) Moreover, the applicant has already submitted trash and recycling plans, which must be approved as submitted, and the applicant is concerned that these conditions will significantly increase costs and impact the feasibility of the projects. The applicant therefore requests that these conditions be removed.

Conclusion
Tower Investment’s proposed project qualifies as a builder’s remedy project and therefore must be approved as proposed. The multitude of conditions that staff have proposed violate state law, and therefore cannot be imposed. We request that the City accept the applicant’s revisions to the proposed conditions and, if the City rejects a particular revision, provide an explanation explaining how the proposed conditions do not violate the HAA.

Very truly yours,

___________________________________
Brian O’Neill

From:

To: Penollar, Krisha
Subject: Question submitted for Hearing on 294/296 Tyrella Date: Tuesday, March 11, 2025 8:41:27 AM
CAUTION: EXTERNAL EMAIL - Ensure you trust this email before clicking on any links or attachments.

I cannot attend the meetin on March 12 because my husband is having surgery and I will be at the hospital waiting for him I would like to submit this question to Mr. Linebarger if it is possible please:
“I attended the November meeting and spoke to Mr. Linebarger afterwards to ask why the project went from the initial 11 units (pre-pandemic) to 33, then 44 units, and now 85.

He said it must be 85 to include 20% affordable housing units. I want to know why he didn’t simply add 20% affordable housing onto his 44 unit plan. Instead on the day builders remedy became possible he filed completed plans for a project twice the size of the one he had going through the system.”
If Mr. Linebarger responds, could the planners provide feedback on his answer please? Thank you,
Rachel Alvelais
Things change and we are blessed if we have people who remember the changes with us

From:

To: Penollar, Krisha
Subject: Tyrella Ave Proposed Project
Date: Wednesday, March 12, 2025 12:12:44 PM
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Dear Krisha,
I am writing to you today to let you know that I am against a 7 - story building being built in my neighborhood. My condo at is in a 2 story complex. A 7-story building does not fit into our neighborhood at all. I believe a 2-3 story building would be much more appropriate.

Please stand strong for the residents and owners of Mountain View and do not let this developer put 85 units on a .48 acre parcel.

It is obvious that he is only interested in making a
large profit from this development and does not really care about the feel of this lovely, wooded, peaceful yet still somewhat densely populated area.

There are a lot of condos and
apartments along this corridor and a 2 or 3 story structure would fit in and be much more appropriate for this area.

I would invite him to offer a similar structure at a 2-3 story level.

Thank you for listening to my request and for all you do for our Beautiful City of Mountain View.

Best regards,
Clarice Arne
Owner at

From:

To: Penollar, Krisha; Administrative Zoning Hearing
Subject: Concerns 294-296 Tyrella Ave. MV Project
Date: Wednesday, March 12, 2025 1:07:39 PM
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Dear City Planning Committee,
As a resident living just two doors down from the planned construction site, I will be significantly impacted by this project. While I understand the need for development, I have serious concerns regarding its potential disruption, environmental impact, and community alignment. I respectfully submit the following points for consideration:

1. Construction Schedule and Quality of Life Impact
The construction process will undoubtedly have a considerable effect on immediate and nearby residents. I request that work hours be limited to no earlier than 7:00
AM and no later than 5:00 PM, with no construction on weekends. Additionally, I know of several neighbors who work night shifts and depend on daytime hours for rest. Excessive construction noise during the day will significantly impact their well- being and ability to maintain their livelihoods. This is a substantial project that will take time to complete, and it is essential that residents’ right to a reasonable quality of life be preserved during this period.

2. Health Concerns Related to Construction Debris
Given the close proximity of residents to the construction site, there are serious concerns regarding
air quality, dust, and other debris generated by the project.

What protocols will be in place to mitigate dust and airborne particles to protect public health? Additionally, is there a designated fund to support local residents who may experience health complications due to prolonged exposure to construction- related pollutants? Clear communication on this matter is essential for community reassurance.

3. Heritage and Environmental Impact of Tree Removal
The planned removal of six trees is deeply concerning, particularly two that are in good condition and contribute significantly to the neighborhood’s greenery and aesthetic character. The introduction of a
seven-story structure will already be a
stark contrast to the existing architectural landscape, where the majority of buildings are
one-story with a few three-story structures. Maintaining a balance of natural landscaping is crucial for both aesthetic harmony and property value preservation.

I urge reconsideration of the full removal plan and advocate for the retention of these trees to ensure a balanced streetscape.

4. Affordable Housing Allocation
The proposed
20% affordable housing allocation, equating to 17 units, is insufficient given the economic demographics of this neighborhood. To foster a more inclusive and sustainable community, I strongly recommend increasing this to at least

40%. This adjustment would better reflect the financial realities of residents while ensuring a more equitable distribution of housing opportunities.

5. Construction Parking Impact
Parking in our neighborhood is already limited, and accommodating an influx of construction workers could create significant congestion. Where will employees park during the project? I request that construction crews be required to park exclusively
on Middlefield Road rather than within the neighborhood, to minimize disruption for residents who already face challenges with available parking.

This project will have a lasting impact on our neighborhood, and it is imperative that it is approached with
thoughtfulness and fairness. I urge the committee to address these concerns and incorporate community feedback to ensure that the development aligns with the character and needs of the existing residents.

Thank you for your time and consideration.

Sincerely,
Reyna Ramos

Nov 12, 2024
Mountain View Zoning Administrator
500 Castro St.

Mountain View, CA 94041
Re: Proposed Housing Development Project at 294-296 Tyrella Ave By email:[email protected]
CC: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected] Dear Mountain View Zoning Administrator and City Sta
,
The California Housing Defense Fund (“CalHDF”) submits this letter to request that the Zoning Administrator and city sta comply with their obligations to process the proposed 7-story, 85-unit condominium building at 294-296 Tyrella Avenue under all relevant state and federal laws.

The City is requiring this project, and others it is considering, to comply with numerous aspects of its municipal code that together may render the project infeasible. The City’s actions are a violation of the Housing Accountability Act (“HAA”). Separately, the City’s continued imposition of fees in lieu of a dedication of parkland is in violation of the constitutional prohibition on exactions in excess of the impacts of proposed development.

design review standards, unless it makes writtenindings, based upon a preponderance of the evidence in the record, as to one of the following …” (Gov. Code, 65589.5, subd. (d).) Based on our enforcement work, the City has some of the highest park fees in the state. In fact, the City itself has come to the conclusion that they are a barrier to housing. From the City’s Housing Element, Appendix D, “The economic analysis that the City conducted as part of this Housing Element Update (see Appendix H) found that Mountain View’s park dedication requirements have a moderate to major impact on development costs for rowhouses and a major impact on development costs for multifamily development.” The transportation impact fee also harms project viability, as does imposition of the City’s below-market housing regulations.

Given the staggering land costs in the City, and the fact that the project must provide 20% low-income housing (directly mitigating the City’s shortage of lower-income housing), also requiring $67,800 in parks fees per unit is a clear violation of state law. (See Gov. Code, 65589.5, subd. (d).) Even at a “discounted” rate of $54,240, these parks fees are completely uneconomical.

The City’s view is that it can apply any/all provisions of its code to this project, provided that they do not pertain speci
ically to density, based on its reading of Government Code, Section 65589.5, subdivisions (f)(1) and (f)(3). This is incorrect. Subdivision (f)(1) allows cities to apply development standards to housing developments if those standards are “appropriate to, and consistent with, meeting the jurisdiction’s share of the regional housing need” and the standards are “applied to facilitate and accommodate development at the density permitted on the site and proposed by the development.” The parkland dedication requirement is also not covered by subdivision (f)(3). That provision allows cities to apply “fees and other exactions authorized by state law.”
Additionally, the City may not apply a
ordable housing regulations to the project beyond
what is required by the HAA. The HAA requires that to qualify as a builder’s remedy project, the project must provide 20% of units as low-income housing and provided such 20% a
ordable housing is provided, the project need not comply with zoning. (Gov. Code, § 65589.5, subd. (d).) The City’s attempts to dictate unit mix and tenure (i.e. rental vs. condo), as well as to condition approval on the City’s acceptance of a BMR agreement, are plainly disallowed by the HAA. Similarly, if the applicant wishes to change the project from a condominium development to a rental property, or vice versa, the City may not dictate a change in a
ordability terms, provided that 20% of units remain aordable to low-income households.

Builder’s remedy projects only arise when a City has failed to adequately plan for its share of housing production required under its Regional Housing Needs Allocation (“RHNA”). In this situation, none of a jurisdiction’s development standards are consistent with meeting housing production goals, because that jurisdiction has failed to produce a plan to justify its 2 of 5
policies at all. And again, the City here hasadmitted (in its Housing Element) that the standard in question is a major factor in making housing development infeasible. There is simply no way that requiring a dedication of parkland from new housing development or imposing transportation impact fees is consistent with meeting the City’s RHNA goals.

Furthermore, in accordance with general interpretive provisions for statutes, and due to statutory construction rules (Code Civ. Proc., § 1859), such general protections of (f)(1) and (f)(3) do not overrule the particular provisions of Government Code, Section 65589.5, subdivision (d). The City may not condition approval to require the project to adhere to these various code sections without making health and safety
indings as required by the HAA. (Id.
at subd. (d)(2).) Finally, the legislature clearly establishes that it is the policy of the State that the HAA shall be “interpreted and implemented in a manner to a ord the fullest possible
weight to the interest of, and the approval and provision of, housing.” (Id.at (a)(2)(L).) Allowing cities to apply conditions of approval that render aordable housing developments infeasible through strained interpretations is clearly against the policy of the State of California. (See California Renters Legal Advocacy & Education Fund v. City of San Mateo(2021) 68 Cal.App.5th 820, 854.)
The City also may not disapprove the project based on the tree removal permit or demolition permit, as this would constitute a denial under the HAA. (See, e.g.,San Francisco Bay Area Renters Federation v. City of Berkeley et al., Superior Court of Alameda County, Case No.

RG16834448, Stipulated Order
iled July 21, 2017 [see attached] [ruling that the City of Berkeley could not deny an ancillary demolition permit in order to stop a housing development project].)
Given that these conditions, in aggregate, have a tremendously adverse impact on project viability, if the City insists on applying these conditions on the proposed builder’s remedy project, the state law (id. at subd. (i)) states clearly that it will bear the burden of proof in court (emphasis added):
“If any city, county, or city and county denies approval or imposes conditions, including design changes, lower density, or a reduction of the percentage of a lot that may be occupied by a building or structure under the applicable planning and zoning in force at the time the housing development project’s application is complete, that have a substantial adverse e
ect on the viability or aordability of a housing
development for very low, low-, or moderate-income households, and the denial of the development or the imposition of conditions on the development is the subject of a court action which challenges the denial or the imposition of conditions, then the burden of proof shall be on the local legislative bodyto show that its decision is consistent with the
indings as described in subdivision (d), and that theindings are supported by a preponderance of the evidence in the record, and with the requirements of subdivision (o).”
3 of 5
II. The Parkland Dedication Requirement is a Per Se Regulatory Taking Under the Fifth Amendment of the US Constitution, and the In-lieu Fee is an Unconstitutional Condition
The Fifth Amendment of the Constitution prohibits governments from taking private property without just compensation. The Fifth Amendment has been interpreted by the U.S.

Supreme Court to prohibit zoning and land use regulations that e ectively deprive an owner
of protected property rights. (SeePenn Central Transportation Co. v. New York City(1978) 438 U.S. 104.) Perhaps the most clear cut regulatory taking occurs when a land use regulation allows for a permanent physical occupation of private property. (Loretto v. Teleprompter Manhattan Catv Corp.(1982) 458 U.S. 419.) There is perhaps no more obvious example of a violation of the regulatory taking doctrine than the policy enacted by Mountain View here.

The City requires, through zoning regulation, that property owners deed their private property over to the City without just compensation, for public use as a park. The fact that this dedication is only required as a condition of approval for residential development does not allow it to escape constitutional scrutiny. The Supreme Court has long held that regulatory conditions on development approvals that would otherwise constitute takings must be reasonably related to mitigating impacts of that development, and roughly proportional to those impacts. (Nollan v. California Coastal Comm'n(1987) 483 U.S. 825 (Nollan); Dolan v. City of Tigard(1994) 512 U.S. 374 (Dolan).) The City has established no such relationship because it cannot. A desire to acquire and develop parkland is not an impact of new development to be mitigated, and even if it were, the $67,800 per unit fee (or $54,240, if discounted) is wildly out of proportion to any purported impact. The City is free to acquire property for new parks by acquiring property on the private market, or by use of eminent domain powers providing just compensation to property owners, but it cannot simply enact a regulation requiring that developers give land to the City without just compensation.

The City perhaps enacted the parkland dedication policy under the mistaken impression that it is rendered legal by allowing developers to pay a fee in-lieu of dedicating land for parks. Prior California caselaw had indicated that legislatively enacted fees are not subject to constitutional takings limits. (San Remo Hotel v. City and County of San Francisco(2002) 27 Cal.4th 643, 668.) Recently, the U.S. Supreme Court decided that this is de initely not the case.
(Sheetz v. Cnty. of El Dorado(2024) 601 U.S. 267.) InSheetz, the California Court of Appeal had ruled that a trafic impact fee was not subject to the requirements ofNollan and Dolan, because it was a legislatively enacted exaction, following theSan Remo Hotel decision. (Id. at 407.) The U.S. Supreme Court overturned this ruling,inding that fees imposed as legislative enactments are subject toNollan and Dolan. (Id. at 280.) After the Sheetz decision, there is no question that the Nollan and Dolan standards apply to the parkland dedication and in-lieu fee requirements at issue for this development. Because the City has not established any nexus between new development and the need to acquire and develop parkland, nor that the $67,800 fee is proportionate to any impacts of new housing on 4 of 5
parkland, the City is prohibited from applying this policy to new housing development including the current proposal before you.
⬢⬢⬢
As you are well aware, California remains in the throes of a statewide crisis-level housing shortage. If we do not allow suf
icient housing development, more and more Californians will become and remain homeless. CalHDF urges the City to approve this builder’s remedy project without imposing the aforementioned conditions, as is required by state and federal law. If the City declines to heed the above guidance and imposes the park dedication requirements on this or any other housing developments, CalHDF is prepared to bring legal action to invalidate these conditions and the citywide policy.

CalHDF is a 501(c)3 non-pro
it corporation whose mission includes advocating for increased access to housing for Californians at all income levels, including low-income households.

You may learn more about CalHDF atwww.calhdf.org.

Sincerely,
Dylan Casey
CalHDF Executive Director
James M. Lloyd
CalHDF Director of Planning and Investigations
5 of 5

From:

To: Penollar, Krisha; , Planning Division
Subject: Public Comment re 294-297 Tyrella Avenue Proposal Date: Tuesday, November 12, 2024 3:04:36 PM
CAUTION: EXTERNAL EMAIL - Ensure you trust this email before clicking on any links or attachments.
(For the Administrative Zoning Meeting on 11/13/24)
Dear Administrative Zoning Commission,
I would like to add to Roger Noel's comments. As a 28 year tax paying resident in Mountain View, I too am requesting that the City not approve the proposed project at
294-296 Tyrella Avenue. A 7 story building is totally inappropriate for this neighborhood. The intersection of Tyrella Avenue is dangerous enough without adding so many units. Street parking in the area is bad enough as it is. I am concerned for our children's safety biking to school with the additional traffic load.

As the president of the
Tyrella Townhomes Homeowner's Association (27 years),
speaking for our association, the proposal is inappropriate. I have been listening to complains about the lack of
street parking as well as the dangers at the intersection of Tyrella Avenue and Middle Field Road. I as well as the community have concerns about safety for our children who bike to school, additional traffic load in and around this intersection. This is a project for a different location, where density and height is appropriate.

It is my hope that this project either be blocked or severely cut back in scope.

Sincerely,
Ken Brent
President Tyrella Townhomes HOA

From: , Planning Division
To: Penollar, Krisha
Subject: FW: Request to deny permission for tree removal Date: Tuesday, November 12, 2024 8:26:41 AM
294-296 Tyrella

Nancy Woo-Garcia
Office Assistant /CDD-Planning
Main 650-903-6306

From: Aparna V
Sent: Monday, November 11, 2024 2:28 PM
To: Administrative Zoning Hearing <[email protected]> Subject: Request to deny permission for tree removal

CAUTION: EXTERNAL EMAIL - Ensure you trust this email before clicking on any links or attachments.

Respected Administrative Zoning Team,

I am a resident living on Gladys Ave near Tyrella. I am hereby writing this email to express my views on the proposed project at 294-296 Tyrella Avenue for which the AZ hearing is being held on Nov 13th at 04:00 PM.

While affordable housing is an issue and there are not as many houses as the influx of people every year into California, especially in the bay area, it should not become a reason to fell healthy and standing trees.

The project requests permission for heritage tree removal.

As one of the many species sharing this planet with other species of birds and animals, all the more because it is only us that can think and take action, it becomes our responsibility to actually share the planet with other species by not taking more than what we need. While it is ok to destroy an existing building to construct a new one, it is not ok to destroy a living tree, nor is it ok to kill the tree to build something because it is going to be of monetary value to us humans. It is also necessary to keep in mind that if the tree or trees are felled for our benefit, there may be birds and animals living on the tree who will lose their homes. While 'collateral damage' may be the fast rule in the world of capitalism, it is important to recognise the direction in which we are moving as a species the world over - destroying other species for food, clothes, shelter, and whatnot.

I urge you to use your power for stopping the felling of any trees that "are in the way" of monetary benefits for buildings can be constructed around trees but once felled, to grow these trees will take 100s of years and we amidst the warming climate, cannot afford to lose any of the existing carbon sinks.

I hope my word will have some impact on your thoughts about this and you will take the appropriate decision that will contribute to the environment in the best way.

Sincerely,
Aparna
From:

To: Administrative Zoning Hearing
Cc: Penollar, Krisha; Scott Atkinson
Subject: Opposition to 294-296 TYRELLA AVENUE RESIDENTIAL DEVELOPMENT PROJECT (BUILDER’S REMEDY) Date: Thursday, November 7, 2024 3:28:02 PM
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11/7/2024

JOINT SUBDIVISION COMMITTEE AND ADMINISTRATIVE ZONING HEARING DATE & TIME: Wednesday, November 13, 2024, at 4:00 p.m.

*I will be out of state at the appointed meeting time. Therefore, I request that this email be forwarded to all committee members, be included in the record of public comments, and read (in whole if possible) during the public comments portion of the meeting.

As an owner of two properties in the immediate neighborhood of this project (one single-family and one multi-family), I strongly oppose the scale and particularly the height of this project.

Developer’s proposal has maximized the envelope in mass and number of units, while minimizing parking, open space, and neighborhood compatibility.

Simply put, four stories is NOT compatible with ANYTHING in the broader neighborhood.

Most are one story, and some are two story. There are no three stories, let alone four stories! This is inappropriate for the residential neighborhood (even compared to other multi-family properties here). Although a two-story would be preferred, a three-story building, with significant step backs on the third story, would be reasonable and acceptable.

Even the currently in-construction
development at South Rengstorff tops out at three stories (and it is appropriately among other taller buildings nearby and within 500 feet of the main El Camino traffic & commercial corridor).

As a secondary concern, the traffic impact (of both construction and congested residents) will be tremendous, and should be constrained in impact and length of project.

However, it is the impact of 4 stories on the neighborhood that would be permanently unfortunate indeed.

Thank you,
Scott

Scott C. Atkinson
Mountain View, CA 94043

From:

To: Penollar, Krisha
Subject: Project at 294-296 Tyrella Ave
Date: Monday, November 4, 2024 8:35:26 AM
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Dear Ms. Penollar,
I’m reaching out regarding the proposed seven-story condominium building planned for construction on two originally zoned R-3 lots across from my residence at . I wanted to share my comments and concerns, as well as express support for thoughtful development that aligns with community priorities and preserves the character of our neighborhood.

I'm concerned about how a project of this size will impact our neighborhood’s infrastructure.

While I know as a "Builder's Remedy" project the City may be more limited in what it can influence I’d like to understand its potential effects on water, sewage, and electrical systems.

Additionally, street parking is already scarce, and with this project—as well as the additional project down the street on Tyrella—it seems likely that parking will become even more limited, particularly in the evenings.

Traffic at the Tyrella and Middlefield intersection is another key concern. In my decade-plus living here, I have witnessed several serious accidents at this intersection, and increased traffic from new residents could exacerbate the issue. I’d like to inquire if there have been or will be assessments conducted related to drainage, air quality, wind and shadow impact, and the strain on existing infrastructure systems.

Construction-related disruptions are also a concern. With a project of this scale, there could be prolonged periods of noise, dust, and limited street access, affecting residents' quality of life. I would like to know if there are plans to mitigate these disruptions, such as setting restricted work hours and managing construction vehicle routes to reduce congestion in residential areas.

While I fully support efforts to address housing needs, I believe these considerations are crucial to balancing new development with the well-being of existing residents. Thank you for taking these concerns into account, and I look forward to any updates or guidance on how I might continue to voice my comments.

Best regards,
Tim Palmer

From:

To: Penollar, Krisha
Subject: Public Comment: 294-296 Tyrella Proposal for the Zoning Meeting Date: Wednesday, November 13, 2024 12:00:55 PM
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Hello Krisha,
My name is Mary Braun, I am a 7 year resident of Mountain View, and I wanted to share my thoughts on the proposal for 294-296 Tyrella. I am unable to attend the meeting this evening due to a prior engagement.

I wanted to reach out and express my concern for a project of this size in our neighborhood. I am a member of the Board at Middlefield Meadows and we have concerns about new development of this size so close to our schools and pedestrian access to Stevens Creek trail.

Introducing additional traffic along a commute route for students (both to Crittenden, the
German International School, Vargas, and the high school) raises safety concerns.

Additionally parking in this neighborhood is already limited.

I understand the pressure on Mountain View to increase access to housing. Perhaps this could be relocated to a neighborhood where high rises are part of the character of the neighborhood already? Or, could the height of the project be capped at 3 above ground stories?

I want to be able to collaborate to increase access to housing without introducing public safety
concerns for children and pedestrians.

Thank you for your consideration of these points.

Best,
M

From:

To: Penollar, Krisha
Subject: Tower Investment Development Permit for Tyrella and E Middlefield Date: Friday, November 1, 2024 2:31:43 PM
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Dear Krisha
We will not be able to attend in person the public hearing on November 18th, 2024, for the Tyrella Ave., 85-unit condominium development permit. The development is planned on the corner of Tyrella Ave, and E. Middlefield Rd., just two blocks away from our home on Leslie Ct. We have been in our home at since 1981, purchased it in 1988, and have been comfortable here. But in recent years with the growth of the Tech industry, and Google in particular, the traffic on Middlefield Rd., has greatly increased with commensurate speed and risk. We do appreciate this growth has placed high demand on housing in Mountain View, especially for affordable housing, and Mountain View is looking for locations where large scale construction can be located.

But we are strongly
opposed to an 85-unit condominium complex two blocks from our home. Parking on Leslie Ct., is already tight and occupied with vehicles whose owners do not live on Leslie Ct. Increasing the housing density here will only make that worse. With a major housing project nearing completion on Middlefield near Moffett Blvd, the character of Mountain View is undergoing transformation from comfortably suburban to high density urban with its attendant social issues like homelessness, crime and litter on the horizon.

No community has ever rapidly urbanized without
the destruction of quality of life of its current and long time residents. Mountain View lacks both the experience and talent to suitably guide its planning so as to avoid the deterioration and loss of the suburban, relaxed and cooperative
community lifestyle. Do not approve this permit. Do not approve this development.

Sincerely,
Ivan and Margo Linscott
Mountain View, CA 94043

From: Nicky Sherwood, Wagon Wheel Association Board President To: Administrative Zoning Hearing
Cc: Krisha Penollar, Senior Planner
Subject: 294-296 Tyrella Avenue Development Proposal - Comments re the for the Joint Subdivision and Administrative Zoning Hearing on 11/13/24

Date: 11/10/2024
Zoning Administrator,
I was surprised and disappointed to see that there was not a detailed Plan Set included with the Joint Subdivision and Administrative Zoning Hearing agenda materials for the proposed 294-296 Tyrella development. This has been customary with other developments in the Wagon Wheel and Slater neighborhoods. Did the 294-296 Tyrella developer, Forrest Linebarger, not agreed to share the detailed plans with the public? (Note that other project being considered at this same meeting, 590 Castro, did provide the Plan Set, as did the developer for the nearby 266-272 Tyrella project.) Design details have not provided that show the landscaping plans, nor how much the neighboring residences will be impacted by the building as far as shade and sun conditions.

Parking is always a particular concern when projects of this size are being proposed in the middle of a residential area. A mention is made of two levels of parking in the Staff Memo, but the total number of spaces is not mentioned, nor is that clear on the Site Plan and Massing diagram. Also mentioned is the loss of street parking due to the new red curb striping associated with this development, but not how many street parking spaces will be lost. Therefore, it is difficult to judge the potential street parking impact on streets in all directions, including Gladys, Kittoe, Leslie, and across Middleﬁeld on Tyrella and potentially on Flynn Avenue.

Without more detailed information than has been provided in the meeting agenda attachments, it is not clear how potentially impacted neighbors can form opinions or compose questions to ask at the Administrative Zoning Hearing on November 13.

Therefore, I suggest that it would be fairer to the neighbors for the decision to be postponed until such time as the developer shares more details (preferably the full Plan Set) with the public for review by those neighbors who may be signiﬁcantly impacted.

Thank you,
Nicky Sherwood
Dear Zoning Commission,

I have grave concerns about the height and seismic stability of the proposed project. Given the Palo Alto fault runs in such close proximity to the project (Figures 1a, 1b), the liquefaction potential (Figure 2a, 2b), the 7 stories on 0.48 acres with a likely significant depth and soft story parking structure, and the geohazards associated with the site and given the project design on a site located within an Earthquake Zone of Required Investigation (Figure 3) and with a Moderate Liquefaction Hazard designation by the U.S. Geological Survey (Figure 2b). Such a development poses dramatic seismic risk to nearby, smaller structures. I would strongly recommend the zoning commission consider asking the developer for an extensive geotechnical review of the seismic stability of such a structure on unconsolidated alluvium substrate (Figure 4). A seismic hazard analysis should be conducted and results provided to nearby property owners who may face rising insurance costs to protect their lives and property against such tall and narrow building being proposed in a seismically unsound place, with the potential for extensive damage to surrounding structures and people.

Figure 1a. Fault Activity Map of California with zoom in to area. California Department of Conservation, California Geological Survey (https://maps.conservation.ca.gov/cgs/fam/; accessed 11/13/24.

Figure 2b. U.S. GEOLOGICAL SURVEY, U.S. DEPARTMENT OF THE INTERIOR OPEN-FILE REPORT 06-1037 (accessed 11/13/24)

MAPS OF QUATERNARY DEPOSITS AND LIQUEFACTION SUSCEPTIBILITY IN THE CENTRAL SAN FRANCISCO BAY

REGION, CALIFORNIA
geology by Robert C. Witter, Keith L. Knudsen, Janet M. Sowers, Carl M. Wentworth, Richard D. Koehler, and Carolyn E. Randolph; digital database by Carl M. Wentworth, Suzanna K. Brooks, and Kathleen D.

Gans, 2006

Figure 3. Earthquake Zones of Required Investigation map from the California Geological Survey, wi th property location at 294-296 Tyrella indicated (blue box with metadata callout), https://maps.conservation.ca.gov/cgs/EQZApp/app/; accessed 11/13/24.

Figure 4. Quaternary geologic map of the Nine-County San Francisco Bay Region, California (2023), https://www.sciencebase.gov/catalog/item/64e63984d34eeb681137d68a; accessed 11/13/24.

Thank you for your time and consideration.

Tamara Wilson
Property Owner – Wagon Wheel Neighborhood, former MVWSD School Board member and president (2016-2020).

PATTERSON & O’NEILL, PC
235 M
ontgomery Street, Suite 950
San Francisco, CA 94104
Telephone: (415) 907-9110
Facsimile: (415) 907-7704
www.pattersononeill.com
November 13, 2024

VIA EMAIL
Administrative Zoning and Subdivision Committee
500 Castro Street
Mountain View, CA 94041
Re: Agenda Item 5.1 - 294-296 Tyrella Avenue Development Application Permit Nos. PL-2023-1 02 & PL-2023-103
Dear C
ommittee Members:

The staff report erroneously suggests that the City can still require compliance with certain standards through conditions of approval as an end-run around the Builder’s Remedy. Staff has proposed over two hundred conditions of approval. As explained in more detail below, these conditions of approval violate the Builder’s Remedy provision of the Housing Accountability Act (“HAA”). Housing advocacy organizations, including YIMBY Law and the California Housing Defense Fund, have submitted letters confirming that these conditions violate state law. (See Exhibit B.)
The City is required to approve the project as proposed by the application without the conditions of approval. That said, Mr. Linebarger has worked cooperatively with City staff throughout the application process and is willing to accept most of the proposed conditions, except those that would make the project infeasible. If the City eliminates or modif ies the conditions as suggested in Exhibit A, Mr. Linebarger will accept the City’s conditional approval. However, if the City imposes the conditions as suggested by staff, the project would not be buildable, and he w ould be left with no choice but to challenge the City’s actions in court.

Our firm has extensive experience and success litigating housing law issues, including the first published decision interpreting the Housing Crisis Act of 2019, Yes In My Back Yard v. City of Culver City (2023) 96 Cal.App.5th 1103 and one of the first trial court cases interpreting the Builder’s Remedy, Jha v. Los Angeles, LASC Sup. Ct. Case No. 23STCP03499. Please be aware

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that in any action challenging the City’s action, the City bears the burden to demonstrate that it has complied with the HAA and the City would be responsible for the attorney’s fees of the applicant and any housing advocacy group that bring a challenge.

We urge the Committee to approve the project and modify the conditions of approval as suggested by the applicant in Exhibit A.1 The project would provide a significant amount of deed-restricted affordable units, help the City attain its RHNA, and avoid costly litigation.

A. The Application Must Be Approved as Submitted

This project provides 20% of units as affordable, and therefore qualifies as “housing for very low, low-, or moderate-income households” under the HAA. (Gov. Code § 65589.5(h)(3).) As such, subdivision (d) requires a local government to approve the project unless the local government can make one of the five findings based upon a preponderance of the evidence.

Those findings include: 1) the local agency has a compliant housing element and its jurisdiction has met its regional housing needs allocation; 2) the proposed project would have a specific, adverse impact upon the public health or safety that cannot be mitigated; 3) denial is required to comply with specific state or federal law; 4) the project site is on or surrounded by land zoned for agricultural or resource preservation, or does not have adequate water or wastewater facilities; or 5) the project 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 the Housing Element Law. (Gov. Code § 65589.5, subd. (d)(1) – (5).)

Thus, under Builder’s Remedy provision (subdivision (d)(5)), a local government cannot deny a housing development project for low-income households, even if the project is inconsistent with the jurisdiction’s zoning and general plan, unless the local government can make written findings, supported by a preponderance of the evidence in the record, that it has adopted a housing element in substantial compliance with the Housing Element law. Here, the City did not have a substantially compliant housing element at the time the application was submitted, and therefore the project must be approved as submitted regardless of any zoning or general plan inconsistency.

We note that the City’s staff report fails to provide for the approval of all aspects of the proposed project as proposed by the applicant, most notably the applicant’s request for an encroachment permit and the proposed mixed-use portion of the project, including the sale of food and

1 We note that the City failed to provide the applicant with proper notice prior to this hearing, nor did City staff provide the conditions to the applicant prior to this hearing. The applicant has not had adequate time to review all the proposed conditions and reserves the rights to identify additional conditions that impact the feasibility of the project.

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alcoholic beverages. Thus, the proposed “approval” fails to actually approve the project as proposed.

1. Code Compliance Cannot Be Required Through Conditions of Approval

The City’s view is that it can nullify the zoning and general plan inconsistencies permitted by the Builder’s Remedy by requiring code compliance through conditions of approval. We understand that the City bases this theory on subdivision (f)(3), which is simply a general interpretive provision. It is a basic canon of statutory construction that “when a general and particular provision are inconsistent, the latter is paramount to the former.” (Code Civ. Proc. § 1859.) In other words, a general interpretive provision cannot be read to nullify the specific Builder’s Remedy provision, reducing subdivision (d)(5) to a dead letter and mere surplusage.

Moreover, the City solely relies on a handful of words in subdivision (f)(1) without reading the entire provision in context. Subdivision (f)(1) says that the HAA should not be interpreted to prohibit a local agency from requiring compliance “with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the jurisdiction’s share of the regional housing need pursuant to Section 65584.” This subdivision also states that any condition of approval must “be applied to facilitate and accommodate development at the density permitted on the site and proposed by the development.”

The applicability of subdivision (f)(1) is predicated on whether a local jurisdiction has identified the standards that are “appropriate to, and consistent with,” meeting a jurisdiction’s RHNA. The first step in the housing element process is to identify the “appropriate zoning and development standards” to accommodate RHNA. (Gov. Code § 65583(c)(1).) Thus, a local government that does not have a certified housing element (i.e. a local agency that is subject to the Builder’s Remedy) does not have standards “appropriate to, and consistent with” meeting its RHNA requirements. This is the entire reason why the Builder’s Remedy, which is part of the Housing Element Law, exists.

If a local government has not gone through the housing element update process to update its zoning and general plan standards to meet RHNA requirements, subdivision (d)(5) allows affordable housing projects a path toward approval notwithstanding existing standards.

Moreover, subdivision (f)(1) clearly demonstrates that the purpose of this subdivision is to “facilitate and accommodate development at the density permitted,” which in this case the density is unlimited, and was not intended as backchannel to thwart subdivision (d)(5).

2. Conditions of Approval Will Cause the City to Disapprove the Project Building Permits in Violation of the HAA

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The HAA defines disapproval as anytime an agency “[v]otes on a proposed housing development project application and the application is disapproved, including any required land use approvals or entitlements necessary for the issuance of a building permit.” (Gov. Code § 65589.5(h)(6).) In other words, the HAA applies throughout the entire process until a building permit is issued and a project can move forward with construction.

Gov. Code § 65913.3(d)-(e), in turn, requires a local government to disapprove a building permit that is “not compliant with the permit standards” within 30 days and must allow an applicant the right to appeal a determination on noncompliance with permit standards to the City Council. If the City attempts to require code compliance through conditions of approval and subsequently disapproves the building permit for noncompliance with permit standards, my client could appeal the disapproval to the City Council. If the Council were to uphold the appeal, this is simply a more circuitous route of disapproval – based on a code inconsistency – that would violate subdivision (d)(5).

In sum, subdivision (f)(1) does not nullify the Builder’s Remedy, and attempting to require code compliance through conditions of approval would still lead the City toward an unlawful disapproval of the project.

B. The HAA Applies to All City Codes
The City staff report suggest that only those standards contained in Chapter 36 of the City’s Municipal Code are subject to the Builder’s Remedy, and that the City can require compliance with any code section outside of Chapter 36.2

First, the enumerated findings within subdivision (d)(1)-(5) are the only valid reasons to disapprove an affordable housing project. Thus, if the City believes that standards outside of Chapter 36 do not fall within the scope of subdivision (d)(1)-(5), noncompliance with any such standards cannot be utilized to disapprove the project. Unless such standards are based on public health or safety or required under federal or state law, noncompliance with any code standard outside of Chapter 36 would still not be a valid reason to disapprove an affordable housing project. In other words, affordable housing projects are only required to comply with zoning and general plan land use standards, and any other code standard is inapplicable.

The Legislature has recently enacted AB 1893, which was intended to clarify the duties of local governments with regard to Builder’s Remedy projects. The Legislative history clearly states that

2 We note that the staff report still proposed to require compliance with the City’s BMR program, which is contained in Chapter 36. Thus, even under staff’s interpretation, the proposed conditions violate the HAA.

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“Under existing law, as long as a developer includes 20% of the units in a development for lower income households or 100% for moderate income and the local agency does not have a substantially compliant housing element, a development must be approved.” (See Exhibit C.) AB 1893 did not put new limits on local government discretion, but rather “set parameters around the density, underlying zoning, and objective standards that a development must meet in order to qualify for the Builder’s Remedy.”

In other words, AB 1893 placed new limits on Builder’s Remedy projects, but merely confirmed and clarified the Legislature’s intent regarding local government’s discretion over such projects under existing law. Most significantly, AB 1893 states that if a project qualifies as a Builder’s Remedy project, the project “shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, redevelopment plan and implementing instruments, or other similar provision for all purposes.” This confirms that the Legislature has always understood that, so long as a project is protected by the Builder’s Remedy, a project is not required to actually comply with any applicable standards, but rather is legally compliant with all standards because those standards are inapplicable.

AB 1893 confirms what the applicant has stated all along – a Builder’s Remedy project is not required to comply with any local standards. The City’s approach, to require compliance through conditions of approval, is simply an end run around the Builder’s Remedy.

C. The City Cannot Impose Conditions that have a Substantial Adverse Effect on the Viability or Affordability of the Project
A local government is also prohibited from imposing a condition “including design changes, lower density, or a reduction of the percentage of a lot that may be occupied by a building or structure under the applicable planning and zoning in force at the time the housing development project’s application is complete, that have a substantial adverse effect on the viability or affordability of a housing development for very low, low-, or moderate-income households.” (Gov. Code § 65589.5(i).)
First, subdivision (i) confirms that conditions may only be based on “applicable planning and zoning in force at the time the housing development project’s application is complete.” Here, because the City did not have a compliant housing element at the time project obtained vesting rights, the City’s general plan and zoning standards were not “in force” because the Builder’s Remedy prohibits the disapproval based on any general plan or zoning inconsistency.

Moreover, this subdivision establishes certain conditions that are per se prohibited, including conditions that lower density or reduce the percentage of a lot that may be occupied by a building or structure. Several of the standards identified in the City’s letter, such as the requirement for more parking spaces and to dedicate land for public easement, are prohibited because the standards reduce the percentage of the lot that may be occupied by a building.

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Finally, subdivision (i) prohibits any condition that would have a substantial adverse impact on the viability and affordability of the project. The Legislature has recognized that providing 20% of units at rates affordable to low-income households is already a significant burden on the feasibility of projects and therefore enacted specific protections to affordable housing projects to prevent de facto disapprovals through conditionals of approval that would render projects infeasible. The City’s own Housing Element found that its BMR program, which only requires 15% of units as affordable to moderate income households, is a significant constraint on the development of housing. This project, which contains more affordable units at a deeper level of affordability, would certainly be made infeasible with the City’s proposed conditions.

The applicant has identified the conditions that will have a substantial adverse impact on the viability and affordability of the project and has proposed a strikethrough of staff’s proposed conditions that would be acceptable, attached as Exhibit A. In addition to those conditions that increase project construction costs, the applicant has highlighted the conditions that will make it significantly less likely that the project will be built. For example, the proposed conditions limit the duration of the approval to the minimum allowed under state law, rather than the maximum timeframes allowed by state law in Gov. Code § 66452.6. The proposed conditions appear to be crafted to ensure that the project does not get constructed, which is the opposite of what the law requires.

Subdivision (i) states that the burden of proof is on the City to demonstrate that it has complied with the HAA’s requirements. (See also Gov. Code § 65589.6.) Therefore, the applicant does not have to demonstrate that a condition of approval has a substantial adverse effect on the project, the burden is on the City to demonstrate that its conditions comply with this requirement. It will be extremely difficult to prove the City has met this burden by a preponderance of the evidence, particularly where the City’s own Housing Element has already found some of the proposed conditions, including the City’s park land dedication requirements, to pose a significant constraint on the development of housing. (See Mountain View 6th Cycle Housing Element, Appendix D: Constraints Analysis, p. 245.)
D. The HAA Limits the Fees that Be Imposed on the Project The City’s authority to impose fees and other exactions for housing development projects is derived from subdivision (f)(3) of the HAA. The staff report appears to only focus on the first half of this provision, ignoring the second half, which states that the City may impose “fees and other exactions otherwise authorized by law that are essential to provide necessary public services and facilities to the housing development project.” The staff report proposes conditions with a significant amount of fees for park land dedication and transportation impacts, without explaining how these fees are essential to providing public services. This is unsurprising, as neither park land nor transportation impact mitigation qualifies as a “necessary public service.” Even if the staff report made an assertion that park land dedication and transportation impact mitigation somehow qualify as necessary public services,

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the City must demonstrate how these fees would be used to provide services “to the housing development project” as required by the HAA. Again, this is unsurprising, as these fees would simply be paid into the City’s general mitigation fund – not to serve the future residents of the project. The proposed fees violate the HAA, and cannot be imposed.

E. The City’s Park Fees Violate the Takings Clause
The United States Constitution prohibits governments from taking private property without just compensation. (U.S. Const. amend. V.) The takings clause prohibits zoning and land use regulations that impose a permanent physical occupation of private property. (Loretto v.

Teleprompter Manhattan Catv Corp. (1982) 458 U.S. 419.) The Supreme Court has long held that regulatory conditions on development approvals must have an essential nexus to mitigating impacts of that development, and roughly proportional to those impacts. (Nollan v. California Coastal Comm’n (1987) 483 U.S. 825; Dolan v. City of Tigard (1994) 512 U.S. 374.) Most recently, the Supreme Court held that impact fees, even those that are legislatively enacted, must meet the “essential nexus” and “rough proportionality” tests of Nollan and Dolan. (Sheetz v.

Cnty. of El Dorado (2024) 601 U.S. 267, 280.)

The City requires that property owners deed their private property over to the City without just compensation for public use as a park, or pay a fee. The fact that this dedication is only required as a condition of approval and that the fee is authorized by the Quimby Act does not allow it to escape constitutional scrutiny, as confirmed by Supreme Court in Sheetz. The City’s desire to acquire and develop parkland is not impacted by our applicants project, nor is the more than 3 million dollar proposed fee in any proportional to any purported impact. The staff report states that in a “good faith” effort to reduce constraints, the City arbitrarily chose to provide a 20% reduction to the City’s standard park land fee. The constitution requires more than a good faith effort, the constitution requires the City to demonstrate an “essential nexus” and “rough proportionality” between the imposed fee and project’s impacts. The City has never commissioned a nexus study, and even if it had, the City must make a case by case determination that the fee imposed on any particular project passes constitutional muster. The City has not done do here, nor could it, and therefore the proposed park land dedication fee constitutes an unconstitutional taking of Mr. Linebarger’s property.

F. The City Cannot Impose Conditions Based on Subjective Standards The HAA greatly limits a local government’s ability to deny a housing development project that complies with applicable, objective general plan, zoning, and subdivision standards, and prohibits local governments from applying subjective standards. (Gov. Code § 65589.5(j)(1)(A)- (B); see also Cal. Renters Legal Advocacy & Educ. Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 844.) The HAA defines “objective” as “involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.” (§ 65589.5(h)(8).)

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The test to determine whether a standard is objective is whether there is a single standard “knowable in advance, to be applied to all.” (Cal. Renters Legal Advocacy & Educ. Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 843.) Many of the standards cited in the City’s letter fail this test of objectivity because the standards allow public officials to make a subjective determination whether the standard will apply in particular instance, and therefore the standard is not one that is “applied to all” and an applicant cannot know if the standard will be applied in this instance.

For example, the parkland in-lieu fees in MVCC Sec. 41.3 are only required when “dedication is impossible, impractical or undesirable as determined by the public works director, zoning administrator or city council as appropriate.” Not only is the “impossible, impractical or undesirable” standard subjective, but the decision to require fees is up to the discretion of public officials and is not knowable in advance. This section requires a housing developer to “dedicate land, pay a fee or both at the option of the city.” This clearly fails the HAA test of objectivity, and therefore the City cannot impose such a standard.

G. The Project is Deemed Compliant with all Code Requirements that Were Not Adequately Identified in the City’s Code Compliance Determination The HAA requires a local government to provide an applicant with a written code compliance determination within a certain timeframe, and that written determination must “identify[ ] the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity” with that provision. (Gov. Code § 65589.5(j)(2).) If the written determination fails to provide the required documentation in a manner that satisfies the HAA’s requirements, “the housing development project shall be deemed consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard, requirement, or other similar provision.” (Id.) Several of the City’s consistency comments failed to meet the HAA standard for a written code compliance determination, including because the comment did not identify the provision the City believes the project fails to comply with. For example, the comments on trash management and multimodal transportation did not “identify the provision” that the City believes the project does not comply with, and therefore these comments do not satisfy the HAA written code compliance requirement. Thus, even if such provisions exist, the project is deemed compliant with such provisions because any inconsistency was not adequately identified within the HAA’s deadline.

To the degree that the City’s conditions of approval are requiring compliance with a provision that the Project has already been deemed compliant with, that condition would violate the HAA.

H. Imposing Conditions of Approval Violate the Project’s Vesting Rights In 2019, the Legislature enacted the HCA to prohibit what the Senate Floor Analyses described as “the most egregious practices” by local governments that prevent the development of new housing. Specifically, the HCA added a new “preliminary application” that allows a housing developer to submit a preliminary application, which under the HAA “vests” the “ordinances,

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policies, and standards” in effect at the time a complete preliminary application is submitted. (§ 65589.5(o)(1).) The HAA defines “ordinances, policies, and standards” broadly to include “general plan, community plan, specific plan, zoning, design review standards and criteria, subdivision standards and criteria, and any other rules, regulations, requirements, and policies of a local agency . . . .” (Gov. Code § 65589.5(o)(4).)
Many of the City’s proposed conditions are not tethered to existing code standards that were in place at the time the preliminary application for this project was submitted and appear to be ad hoc requirements and rules that planning staff has determined should be applied to the project.

The HAA clearly states that a project “shall be subject only to the ordinances, policies, and standards adopted and in effect” when a preliminary application was submitted, and the proposed conditions of approval subject the project here to a myriad of standards that were not in existence until the staff report was published less than a week ago. Thus, these conditions violate the project’s vesting rights.

Conclusion
Tower Investment’s proposed project qualifies as a builder’s remedy project and therefore must be approved as proposed. The multitude of conditions that staff have proposed violate state law, and therefore cannot be imposed. Regardless, the applicant is still willing to accept the vast majority of the conditions with the exception of those that will make the project infeasible. We urge the Committee to approve this much needed affordable housing project, with modifications to the project conditions as requested by the applicant in Exhibit A.

Very truly yours,

____________________________________
Brian O’Neill

Exhibit A

Exhibit B

Sue the Suburbs.
yimbylaw.org
April 9, 2024

VIA E-MAIL
Krisha Penollar, Project Planner
Community Development Department
500 Castro Street
Mountain View, CA 94039
Re: 294-296 Tyrella Avenue Builder’s Remedy Project
Y es In My Back Y ard Comment Letter
Dear Ms. Penollar:

YIMBY Law is a 501(c)3 non-profit corporation, whose mission is to increase the accessibility and affordability of housing in California. YIMBY Law pursues this mission through the enforcement of state housing laws, including the Housing Accountability Act (“HAA” or Gov. Code § 65589.5). As you know, subdivision (d)(5) of the HAA states that if a city or county does not have a “substantially compliant” Housing Element, that jurisdiction cannot utilize its zoning or general plan standards to disapprove a housing project that reserves 20% of its units affordable to lower income households. In other words, cities that fail to pass a compliant housing element by their deadline lose local control over housing development. This is known as the Builder’s Remedy.

The City of Mountain View failed to adopt a substantially compliant Housing Element by the statutory deadline, and a preliminary application for an 85-unit housing development project with 20% low-income units at 294-296 Tyrella Avenue was submitted while the City was out of compliance. The submittal of a preliminary application ensures that the Builder’s Remedy applies to the project throughout the entire entitlement process. YIMBY Law understands that the City is attempting to1 execute an end run around the Builder’s Remedy by enforcing its zoning through conditions of approval. We are writing to inform you that the City’s actions are inconsistent with the Builder’s Remedy and violate the HAA.

The City is taking the position that subdivision (f)(1) allows the City to enforce its zoning and general plan through conditions of approval. First, we note that subdivision (f)(1) is simply a general interpretive proviso and does not provide the City with substantive authority that overrides the 1 See HCD Letter of Technical Assistance issued to Santa Monica, dated October 5, 2023, available at https://www.hcd.ca.gov/sites/default/files/docs/planning-and-community/HAU/santa-monica-TA-100522.pdf. 1 Builder’s Remedy. Subdivision (d)(5) clearly eliminates a local government’s authority to impose its zoning and general plan standards when the jurisdiction is out of compliance with the Housing Element Law.

Moreover, the City is entirely focused on the first half of the first sentence of subdivision (f)(1), completely ignoring the rest. Subdivision (f)(1) says that the HAA should not be interpreted to prohibit a local agency from requiring compliance “with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the jurisdiction’ s share of the regional housing need pursuant to Section 65584.” Subdivision (f)(1) merely references compliance with standards that are appropriate to and consistent with meeting a jurisdiction’s RHNA – i.e. the “appropriate zoning and development standards” to accommodate RHNA that are identified in a local government’s certified Housing Element. (Gov.

Code § 65583(c)(1).) Said another way, a local government that does not have a certified Housing Element to accommodate its RHNA does not have any standards appropriate to and consistent with meeting its RHNA requirements. In short, a local government that does not have a certified Housing Element cannot rely on subdivision (f)(1) at all because the Housing Element process is how a local government identifies standards appropriate to and consistent with meeting RHNA.

Regardless, subdivision (f)(1) also states that any condition of approval must “be applied to facilitate and accommodate development at the density permitted on the site and proposed by the development.” This clearly demonstrates that the purpose of subdivision (f)(1) is to assist the project is getting built, not as a roadblock to the development of affordable housing as the City is attempting here.

The City has also argued that any zoning standard that is not codified within the chapter of the City Code titled “Zoning Ordinance” is outside the scope of the Builder’s Remedy. The City cannot evade the HAA simply by moving zoning standards into a different chapter of the City Code. Under state law, zoning ordinances are defined broadly to include any standard that regulates the location, height, bulk, number of stories, and size of buildings and structures; the size and use of lots, yards, courts, and other open spaces; the percentage of a lot which may be occupied by a building or structure; the intensity of land use; offstreet parking and loading requirements; building setback lines; and inclusionary housing requirements. (Gov. Code § 65850.) The Builder’s Remedy applies to any City ordinance that fits within the broad state law definition of a zoning ordinance.

The HAA provides additional provisions to prevent a jurisdiction attempting to prevent the development of housing through conditions of approval. A local government is also prohibited from imposing any condition that would have “a substantial adverse effect on the viability or affordability of a housing development for very low, low-, or moderate-income households.” (Gov. Code § Sue the Suburbs.
yimbylaw.org
2 65589.5(i).) YIMBY Law reminds the City that the HAA squarely places the burden of proof on the City to demonstrate that it has complied with the HAA ’s requirements. (Gov. Code § 65589.6.) In other words, the applicant does not have to demonstrate that a condition of approval has a substantial adverse effect on the project, the burden is on the City to demonstrate that its conditions comply with this requirement.

The City’s own analysis found that its BMR program, park land dedication requirements, TDM measures, and parking requirements all pose significant constraints on the development of housing. 2 Despite this admission, the City is now attempting to circumvent the HAA by imposing these constraints on an affordable housing project as conditions of approval. Even if the Builder’s Remedy did not apply and the City were authorized to impose its zoning, which it is not, these conditions of approval still violate the HAA because the City admits they have a substantial adverse effect on the viability and affordability of housing.

The proposed project at 294-296 Tyrella Avenue provides desperately needed affordable housing in a community where skyrocketing housing costs have made housing unattainable except for the wealthiest individuals. We respectfully request that the City process the project consistent with the state law, and approve the project as submitted without the proposed unlawful conditions of approval.

If the City fails to do so, YIMBY Law reserves the right to pursue litigation against the City to enforce state housing laws.

Best,
Sonja Trauss
Executive Director
YIMBY Law
Cc:

City attorney Jennifer Logue, [email protected] Community Development Director, Dawn Cameron [email protected] YIMBY Law attorney, , [email protected]
Brian O'Neill
2 Mountain View 6th Cycle Housing Element, Appendix D: Constraints Analysis, p. 245.

Sue the Suburbs.
yimbylaw.org 3

Oct 4, 2024
Mountain View City Council
500 Castro St.

Mountain View, CA 94041
Re: Builder’s Remedy Projects in Mountain View
By email:[email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected] CC: [email protected]; [email protected]; [email protected]; [email protected] Dear Mountain View City Council and City Sta
,
The California Housing Defense Fund (“CalHDF”) submits this letter to request that the Council and city sta comply with its obligations to process proposed builder’s remedy projects under all relevant state and federal laws.

According to the Community Development Department’s August 2024 report, the City is processing a number of builder’s remedy applications:
● 294-296 Tyrella Avenue - 7-story, 85-unit apartment building ● 1500 N. Shoreline Boulevard - 1,914 unit project in eight buildings, each 9-15 stories ● 1920 Gamel Way - six-story, 216-unit condominium project ● 2645 – 2655 Fayette Drive - 7-story, 70-unit apartment building ● 901, 913, and 987 North Rengstor Avenue - 15-story, 455-unit apartment development
The City is requiring these projects to comply with numerous aspects of its municipal code that together render the projects infeasible. The City’s actions are a violation of the Housing Accountability Act (“HAA”). Separately, the City’s continued imposition of fees in lieu of a dedication of parkland is in violation of the constitutional prohibition on exactions in excess of the impacts of proposed development.
360 Grand Ave #323, Oakland 94610
www.calhdf.org

I. The City Cannot Require Builder’s Remedy Projects To Comply with Zoning and General Plan Standards
Density and height standards are not the only development standards that preclude housing development. The HAA requires that (emphasis added)“A local agency shall not disapprove a housing development project, including farmworker housing as deined in subdivision (h) of Section 50199.7 of the Health and Safety Code, for very low, low-, or moderate-income households, or an emergency shelter, orcondition approval in a manner that renders the housing development 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
indings, based upon a preponderance of
the evidence in the record, as to one of the following …” (Gov. Code, 65589.5, subd. (d).) Based on our enforcement work, the City has some of the highest park fees in the state. In fact, the City itself has come to the conclusion that they are a barrier to housing. From the City’s Housing Element, Appendix D, “The economic analysis that the City conducted as part of this Housing Element Update (see Appendix H) found that Mountain View’s park dedication requirements have a moderate to major impact on development costs for rowhouses and a major impact on development costs for multifamily development.” Given the staggering land costs in the City, and the fact that the projects must provide 20% low-income housing, also requiring more than $70,000 in parks fees per unit is a clear violation of state law. (See Gov. Code, 65589.5, subd. (d).) The City’s view is that it can apply any/all provisions of its code to these projects, provided that they do not pertain speci
ically to density, based on its reading of Government Code, Section 65589.5, subdivisions (f)(1) and (f)(3). This is incorrect. Subdivision (f)(1) allows cities to apply development standards to housing developments if those standards are “appropriate to, and consistent with, meeting the jurisdiction’s share of the regional housing need” and that these standards must be “applied to facilitate and accommodate development at the density permitted on the site and proposed by the development.” Builder’s remedy projects only arise when a City has failed to adequately plan for its share of housing production required under its Regional Housing Needs Allocation (“RHNA”). In this situation, none of a jurisdiction’s development standards are consistent with meeting housing production goals, because that jurisdiction has failed to produce a plan to justify its policies at all. And again, the City here hasadmitted that the standard in question is a major factor in making housing development infeasible. There is simply no way that requiring a dedication of parkland from new housing development is consistent with meeting the City’s RHNA goals.

The parkland dedication requirement is also not covered by subdivision (f)(3). That provision allows cities to apply “fees and other exactions authorized by state law.” The parkland 2 of 5
dedication requirement is not an exaction, because if it were it would be prohibited under state law. The Mitigation Fee Act allows for municipalities to impose monetary exactions on development projects, but requires that certain procedures are followed. Critically, municipalities must establish that exactions are related to (Gov. Code, § 66001, subd. (b)) and proportionate with (Gov. Code, § 66005, subd. (a)) identi ied impacts of the new
development. Cities normally establish this relationship through a nexus study. Here the parkland dedication requirement is a generally applicable zoning requirement, not an exaction. While other cities have enacted similar policies under the Mitigation Fee Act, Mountain View did not conduct a nexus study or otherwise establish the dedication requirement as mitigating the impacts of the proposed development. Lastly, the dedication requirement, even if viewed as an exaction, is not authorized by law because it violates the U.S. Constitution. (See Section II,infra.)
In accordance with general interpretive provisions for statutes, and due to statutory construction rules (Code Civ. Proc., § 1859), such general protections of (f)(1) and (f)(3) do not overrule the particular provisions of Government Code, Section 65589.5, subdivision (d). The City may not condition approval to require the projects to adhere to these various code sections without making health and safety
indings as required by the HAA. (Id. at subd.
(d)(2).) Finally, the legislature clearly establishes that it is the policy of the State that the Housing Accountability Act shall be “interpreted and implemented in a manner to a ord the
fullest possible weight to the interest of, and the approval and provision of, housing.” (Id.at (a)(2)(L).) Allowing cities to apply conditions of approval that render aordable housing developments infeasible through strained interpretations is clearly against the policy of the State of California. (SeeCalifornia Renters Legal Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 854.)
Given that these conditions have a tremendously adverse impact on project viability, if the City insists on applying these various conditions on the proposed builder’s remedy projects, the state law (id. at subd. (i)) states clearly that it will bear the burden of proof in court (emphasis added):
“If any city, county, or city and county denies approval or imposes conditions, including design changes, lower density, or a reduction of the percentage of a lot that may be occupied by a building or structure under the applicable planning and zoning in force at the time the housing development project’s application is complete, that have a substantial adverse e
ect on the viability or aordability of a housing
development for very low, low-, or moderate-income households, and the denial of the development or the imposition of conditions on the development is the subject of a court action which challenges the denial or the imposition of conditions, then the burden of proof shall be on the local legislative bodyto show that its decision is consistent with the
indings as described in subdivision (d), and that theindings are 3 of 5
supported by a preponderance of the evidence in the record, and with the requirements of subdivision (o).”
II. The Parkland Dedication Requirement is a Per Se Regulatory Taking Under the Fifth Amendment of the US Constitution, and In-lieu Fee is an Unconstitutional Condition
The Fifth Amendment of the Constitution prohibits governments from taking private property without just compensation. The Fifth Amendment has been interpreted by the U.S.

Teleprompter Manhattan Catv Corp.(1982) 458 U.S. 419.) There is perhaps no more obvious example of a violation of the regulatory taking doctrine than the policy enacted by Mountain View here. The City requires, through zoning regulation, that property owners deed their private property over to the City without just compensation, for public use as a park. The fact that this dedication is only required as a condition of approval for residential development does not allow it to escape constitutional scrutiny. The Supreme Court has long held that regulatory conditions on development approvals that would otherwise constitute takings must be reasonably related to mitigating impacts of that development, and roughly proportional to those impacts. (Nollan v. California Coastal Comm'n(1987) 483 U.S. 825 (Nollan); Dolan v. City of Tigard(1994) 512 U.S. 374 (Dolan).) The City has established no such relationship because it cannot. A desire to acquire and develop parkland is not an impact of new development to be mitigated, and even if it were, the $70,000 per unit fee is wildly out of proportion to any purported impact. The City is free to acquire property for new parks by acquiring property on the private market, or by use of eminent domain powers providing just compensation to property owners, but it cannot simply enact a regulation requiring that developers give land to the City without just compensation.

The City perhaps enacted the parkland dedication policy under the mistaken impression that it is rendered legal by allowing developers to pay a fee in-lieu of dedicating land for parks. Prior California caselaw had indicated that legislatively enacted fees are not subject to constitutional takings limits. (San Remo Hotel v. City and County of San Francisco(2002) 27 Cal.4th 643, 668.) Recently, the U.S. Supreme Court decided that this is de initely not the case.
(Sheetz v. Cnty. of El Dorado(2024) 601 U.S. 267.) InSheetz, the California Court of Appeal had ruled that a trafic impact fee was not subject to the requirements ofNollan and Dolan, because it was a legislatively enacted exaction, following theSan Remo Hotel decision. (Sheetz v. County of El Dorado(2022) 84 Cal.App.5th 394, 407 .) The U.S. Supreme Court overturned this ruling, inding that fees imposed as legislative enactments are subject to Nollan and Dolan. (Sheetz, 601 U.S. at 280.) After theSheetz decision, there is no question that the Nollan and Dolan standards apply to the parkland dedication and in-lieu fee 4 of 5
requirements at issue for these developments. Because the City has not established any nexus between new development and the need to acquire and develop parkland, nor that the $70,000 fee is proportionate to any impacts of new housing on parkland, the City is prohibited from applying this policy to new housing development including the ive
proposals currently under consideration.
⬢⬢⬢
As you are well aware, California remains in the throes of a statewide crisis-level housing shortage. If we do not allow suf
icient housing development, more and more Californians will become and remain homeless. CalHDF urges the City to approve these builder’s remedy projects without imposing the conditions, as is required by state and federal law. If the City declines to heed the above guidance and imposes the park dedication requirements on these or any other housing developments, CalHDF is prepared to bring legal action to invalidate these conditions and the citywide policy.

CalHDF is a 501(c)3 non-pro
it corporation whose mission includes advocating for increased access to housing for Californians at all income levels, including low-income households.

You may learn more about CalHDF atwww.calhdf.org.

Sincerely,
Dylan Casey
CalHDF Executive Director
James M. Lloyd
CalHDF Director of Planning and Investigations
5 of 5

Exhibit C

AB 1893

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CONCURRENCE IN SENATE AMENDMENTS
AB 1893 (Wicks)
As Amended August 23, 2024
Majority vote

SUMMARY
Major Provisions
1) Specifies that a local government may not disapprove a "Builder's Remedy project" if the local government's housing element was not in substantial compliance with the HAA on the date the Builder's Remedy project application was deemed complete. 2) Defines "Builder's Remedy project," as a project that meets the following criteria:
a) The project will comply with one of the applicable affordability or project size criteria, specifically:
i. The project includes a percentage of units that are set aside for affordable housing for a period of 55 years for rental units, and 45 years for ownership. Specifically a project must meet any of the following:
a. 100% of the units, excluding the managers unit are affordable to lower income households;
b. 7% of the units are affordable to extremely low-income households; c. 10% of the units are affordable to very low-income households; d. 13% of the total units are affordable to lower income households; e. 100% of the total units are affordable to moderate income households; ii. In lieu of meeting affordability criteria noted above, or local affordability requirements, as applicable, a project may meet the following:
a. The project contains 10 or fewer units;
b. The project is located on a site that is smaller than one acre; c. The project density exceeds 10 units per acre (4,356 square feet per unit or less); and
d. The project meets specified density requirements.
iii. The project does not abut a site where more than one-third of the square footage on the site has been used by a heavy industrial use in the past three years. 3) Provides that the following apply to the approval of Builder's Remedy projects.

AB 1893

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a) Local governments may only require a project proposed by an applicant to comply with written objective standards and policies that would have applied to the project if it was proposed on a site that allowed the density and unit type proposed by the applicant. If the local agency does not have applicable standards for the project, the development proponent may identify and apply written objective standards and policies associated with a general plan designation and zoning that facilitates the project's density and unit type, as specified.
b) Local governments are precluded from imposing standards, conditions, or policies that render the project infeasible, as specified.
c) Builder's Remedy projects are not required to receive any additional approval or permit, or be subject to additional requirements including increased fees, as specified, solely because the project is a Builder's Remedy project.
d) Builder's Remedy projects shall be deemed consistent, compliant, and in conformity with applicable local plans and standards, as specified.
4) Expands the scope of local government activities that constitute a local government taking action to "disapprove the housing development project," to include when a local government does the following:
a) Takes a final administrative action, other than a vote of the legislative body, on a project; b) Violates development review standards of the Housing Crisis Act that limit the number of hearings, including limitations on the number of hearings a local agency may conduct in its review of the development proposal; and
c) Undertakes a course of conduct that effectively disapprove the housing development project, as specified.

Senate Amendments
1) Add legislative findings.
2) Expands the scope of local government activities that constitute a local government taking action to "disapprove the housing development project." 3) Allow a developer utilizing the Builder's Remedy to request and receive two additional density bonus concessions and incentives above the existing amount. 4) Allow a developer that utilizes the Builder's Remedy that restricts 7% of the units for extremely low-income households to receive the same density bonus allowed under current law for restricting 10% of the units for very low income households or a 32.5% density bonus.
5) Prohibits a local government from applying an inclusionary housing ordinance that requires more affordable housing units that required under the Builders Remedy unless it first makes written findings, supported by a preponderance of evidence, that compliance with the local percentage requirement or the affordability level, or both, would not render the housing development project infeasible.

AB 1893

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COMMENTS
Housing Accountability Act (HAA)/Builder's Remedy: In 1982, the Legislature enacted the Housing Accountability Act (HAA). The purpose of the HAA is to help ensure that a city does not reject or make infeasible housing development projects that contribute to meeting the housing need determined pursuant to the Housing Element Law without a thorough analysis of the economic, social, and environmental effects of the action and without complying with the HAA. The HAA restricts a city's ability to disapprove, or require density reductions in, certain types of residential projects. The HAA does not preclude a locality from imposing developer fees necessary to provide public services or requiring a housing development project to comply with objective standards, conditions, and policies appropriate to the locality's share of the RHNA One constraint within the HAA on local governments' authority to disprove housing, which has gained recent attention, is the "Builder's Remedy." The Builder's Remedy prohibits a local government from denying a housing development that includes 20% lower-income housing or 100% moderate-income housing that does not conform to the local government's underlying zoning, if the local government has not adopted a compliant housing element. A number of developers have attempted to use the Builder's Remedy in the last few years.

For example, the City of La Cañada Flintridge failed to adopt a compliant housing element.

Using the Builder's Remedy, a developer proposed a project for 80 units of affordable housing on church-owned land that was not zoned for housing or for density to accommodate the proposed project. The City denied the project and the developer sued. The City of La Cañada Flintridge argued they were not required to process an application under the HAA to approve a housing development that did not comply with their underlying zoning because they had "self- certified" their housing element by adopting a housing element, even though it was not certified as compliant by HCD. The court ruled that the city was not in compliance despite the fact that they had "self-certified" and found the housing element the city adopted out of compliance with Housing Element Law for various reasons.

Under existing law, as long as a developer includes 20% of the units in a development for lower income households or 100% for moderate income and the local agency does not have a substantially compliant housing element, a development must be approved. The development is not required to meet the underlying zoning, meaning a development can be proposed on a site regardless of the designated use or density. Anecdotally, it appears that although developers are utilizing Builder's Remedy, few projects are going forward as proposed because developments are still subject to the California Environmental Quality Act (CEQA), but rather, the law is being used as a leverage point to get local agencies to approve developments.

This bill proposes to set parameters around the density, underlying zoning, and objective standards that a development must meet in order to qualify for the Builder's Remedy. It would also reduce the amount of affordable housing a development must include to qualify.

Underlying Zoning: Under existing law, inconsistency with the zoning or general plan cannot be used as a reason to deny a Builder's Remedy project. This bill would set parameters around where the Builder's Remedy could be used. This bill would only allow a development to qualify on a site where housing, retail, office, or parking are permissible uses. A site could be zoned for agricultural use, as long as 75% of the perimeter adjoins site that are for an urban use.

Developments that are on a site or adjoined to any site where more than one-third of the square AB 1893

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footage on the site is dedicated to industrial use would no longer be eligible to utilize the Builder's Remedy.

Affordability: To access Builder's Remedy a developer must include 20% of the units for lower income households or 100% for moderate-income households. This bill proposes to change that requirement. For developments less than 10 units, there would be no affordability requirement.

For all other developments, the percentage would be reduced from 20% for lower income households to 13% for very low income households. Lower income households are defined as those households that make 60% of area median income or less. Developments with less than 10 units would have no affordability requirement.

Streamlining: A development utilizing the Builder's Remedy is subject to CEQA. This bill would allow a development that conforms to the density and objective standards to use an existing streamlining process – either AB 2011 (Wicks), Chapter 647, Statutes of 2022, or SB 423 (Wiener), Chapter 778, Statutes of 2023. To qualify for streamlining in either of these processes, a developer would have to meet the affordability requirements, which are higher in both AB 2011 and SB 423, than in this bill. In addition, all of the limitations on location in AB 2011 and SB 423 would apply. Both exempt sensitive environmental sites and have some exemptions in the coastal zone. If a development does not use one of these streamlining options, it would remain subject to CEQA.

HAA Limitations on Disapproving Projects. The HAA requires that a local government cannot disapprove a housing development project that is consistent with the jurisdiction's zoning ordinance and general plan designation, unless the preponderance of evidence shows that certain conditions are met. This provision defines what would constitute denial of a Builder's Remedy project, as well as other HAA protected developments, and thus a violation of the HAA subject to enforcement. The HAA currently specifies certain actions by a local government that individually or collectively constitute a local government "disapproving" a project. This bill expands the scope of local government actions that constitute disapproval of a project to include instances where a local government "effectively disapproves" a project through sustained inaction or the imposition of burdensome processing requirements. It is likely that the ultimate scope of this provision would be litigated by developers and local governments.

According to the Author
"It is going to take all of us to solve our housing crisis, and AB 1893 will require all cities and counties to be a part of the solution. It does so by modernizing the builder's remedy to make it clear, objective, and easily usable. A functional builder's remedy will help local governments to become complaint with housing element law. Where they do not, it will directly facilitate the development of housing at all affordability levels. The message to local jurisdictions is clear — when it comes to housing policy, the days of shirking your responsibility to your neighbors are over."
Arguments in Support
According to the sponsor, the Attorney General, "AB 1893 would clarify and modernize the builder's remedy by providing clear, objective standards for builder's remedy projects, including density standards and project location requirements. With these updates, the builder's remedy will be a more effective enforcement tool because local governments will face greater certainty of swift consequences when they do not adopt a timely and substantially compliant housing element. AB 1893 would also align the builder's remedy with laws and policies that have AB 1893

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emerged in the more than 30 years since the builder's remedy was enacted, including sustainable communities strategies like promoting development in urban infill and near transit centers, and promoting higher density housing that is more affordable than single-family homes." Arguments in Opposition
According to various affordable housing organizations, this bill because the amount of affordable housing a developer must include in a development to qualify for the Builder's Remedy was reduced and the bill imposes an "unworkable project-by-project feasibility study requirement in order for a jurisdiction to apply a local inclusionary requirement to a builder's remedy project.

State law already contains safeguards to ensure that local inclusionary requirements are not an impediment to development, including providing for a single feasibility study of a local ordinance in certain circumstances rather than expensive project-by-project studies. This is consistent with the state's recognition of inclusionary housing requirements as an important tool to increase affordable housing production and affirmatively further fair housing."

FISCAL COMMENTS
According to the Senate Appropriations Committee,
1) The Department of Housing and Community Development (HCD) indicates that the workload associated with this bill would not necessitate the addition of a full PY of new staff, but notes that the bill would impose new workload to provide technical assistance to local agencies, developers, and other stakeholders, and to process case complaints from developers, housing advocates, and legal organizations. Depending on the volume of technical assistance requests and increased complaints regarding violations of the HAA, staff estimates HCD could incur ongoing annual costs in the range of $50,000 to $150,000 for staff time associated with this workload. (General Fund) 2) Unknown, potentially significant cost pressures due to increased court workload to adjudicate additional cases filed under the HAA as a result of the expansion of projects to which the HAA would apply and the expanded definition of what constitutes disapproval of a project.

Staff notes that, in addition to cases referred to the Attorney General by HCD to enforce violations of the HAA, eligible litigants include, project applicants, persons who would be eligible to reside in a proposed development, and specified housing organizations. (Special Fund – Trial Court Trust Fund, General Fund).
3) Unknown local mandated costs. While the bill would impose new costs on local agencies to revise planning requirements and considerations for builder's remedy housing developments, these costs are not state-reimbursable because local agencies have general authority to charge and adjust planning and permitting fees to cover their administrative expenses associated with new planning mandates. (local funds)
VOTES:

ASM HOUSING AND COMMUNITY DEVELOPMENT: 7-0-2
YES: Ward, Grayson, Kalra, Lee, Quirk-Silva, Reyes, Wilson ABS, ABST OR NV: Joe Patterson, Sanchez

ASM LOCAL GOVERNMENT: 7-0-2
YES: Juan Carrillo, Valencia, Kalra, Pacheco, Ramos, Ward, Wilson AB 1893

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ABS, ABST OR NV: Waldron, Essayli

ASM APPROPRIATIONS: 11-2-2
YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua
NO: Sanchez, Dixon
ABS, ABST OR NV: Jim Patterson, Ta

ASSEMBLY FLOOR: 54-1-25
YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Berman, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Flora, Mike Fong, Vince Fong, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Stephanie Nguyen, Ortega, Papan, Jim Patterson, Joe Patterson, Pellerin, Quirk-Silva, Ramos, Reyes, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas NO: Essayli
ABS, ABST OR NV: Bauer-Kahan, Bennett, Boerner, Cervantes, Connolly, Megan Dahle, Davies, Dixon, Friedman, Gabriel, Gallagher, Holden, Irwin, Lackey, Mathis, Muratsuchi, Pacheco, Petrie-Norris, Rendon, Luz Rivas, Sanchez, Ta, Valencia, Waldron, Wallis

UPDATED
VERSION: August 23, 2024
CONSULTANT: Lisa Engel / H. & C.D. / (916) 319-2085 FN: 0005016 PATTERSON & O’NEILL, PC

235 Montgomery Street, Suite 950
San Francisco, CA 94104
Telephone: (415) 907-9110
Facsimile: (415) 907-7704
www.pattersononeill.com
December 20, 2024

VIA EMAIL

Krisha Penollar
500 Castro Street
Mountain View, CA 94041

Re: 294-296 Tyrella Avenue Development Application
Permit Nos. PL-2023-102 & PL-2023-103

Dear Committee Members:

The City is required to approve the project as proposed by the application without the proposed conditions of approval. That said, Mr. Linebarger has worked cooperatively with City staff throughout the application process and is willing to accept most of the proposed conditions, except those that would make the project infeasible, cause unnecessary delay or increases in costs and/or give the City unfettered discretion to disapprove the building permit plans.

If the City eliminates and modifies the conditions as suggested, Mr. Linebarger will accept the City’s conditional approval. We urge City staff to modify the conditions of approval as suggested by the applicant or Mr. Linebarger will be left with no choice but to challenge the City’s actions in court.

A. The Application Must Be Approved as Submitted
Under Builder’s Remedy provision (subdivision (d)(5)), a local government cannot deny a housing development project for low-income households, even if the project is inconsistent with the jurisdiction’s zoning and general plan, unless the local government can make written findings, supported by a preponderance of the evidence in the record, that it has adopted a housing element in substantial compliance with the Housing Element law. Here, the City did not have a substantially compliant housing element at the time the application was submitted, and therefore the project must be approved as submitted regardless of any zoning or general plan inconsistency.

December 20, 2024

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The City’s view is that it can nullify the zoning and general plan inconsistencies permitted by the Builder’s Remedy by requiring code compliance through conditions of approval based on the language of subdivision (f)(1). The City solely relies on a handful of words in subdivision (f)(1) without reading the entire provision in context. Subdivision (f)(1) says that the HAA should not be interpreted to prohibit a local agency from requiring compliance “with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the jurisdiction’s share of the regional housing need pursuant to Section 65584.” This subdivision also states that any condition of approval must “be applied to facilitate and accommodate development at the density permitted on the site and proposed by the development.”

The HAA makes clear that a local agency may only require compliance with objective standards if the local government has adopted standards to meet its RHNA through the housing element update process in Section 65584. Here, the City failed to adopt a substantially compliant housing element when the preliminary application for this project was submitted, and therefore the City cannot impose any standards, whether objective or not. Moreover, the HAA also makes clear that the intent of this provision is to facilitate and accommodate the development as proposed by the applicant in the development. Here, the City’s conditions unlawfully modify and amend the project as proposed by the applicant, in violation of the HAA.

Mr. Linebarger proposed a number of important elements as part of the proposed project in his letter dated June 12, 2024, which was submitted to the City of Mountain View on or about the date of the letter. That letter included a number of attachments that must be incorporated and approved as part of the project, and which essential for the feasibility of the project. These attachments include the following:

Attachment 1 is a table of topics, and their feasibility based on the comments received from the City.

Attachment 5 is a Below Market Rate Alternative Mitigation Program proposal.

Attachment 7 is a Waiver request for the City’s 100% PV System Requirements.

Attachment 8 is a request for an encroachment permit.

Attachment 9 is a request for Waver from certain capacity-based charges deferment of other capacity-based charges.

Attachment 10 is a request for a one sewer and a combined water service.

Attachment 11 is request for exemption from and reduction to traffic impact fees.

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Despite these attachments having been submitted to the city five months ago, the City has failed to take any action or even acknowledge these essential requests. The proposed conditions of approval, published by the City in November 2024, appeared to completely ignore these components of the project.

The City held a public Zoning Administration Hearing on the project in November, 2024. The City failed to provide adequate notice of the meeting to Mr. Linebarger, and he was informed just two days before the hearing. The City, after having gathered the applicant and the members of the public into the room the meeting was summarily cancelled. Even more shockingly, planning staff appeared to suggest that the cancellation was due to Mr. Linebarger submitting “late” comments on the proposed conditions, failing to mention that planning staff had not provided him legally required notice of the meeting. (See Gov. Code § 65091 (requiring notice at least ten days prior to a hearing).)

In his brief comments at that meeting, Mr. Linebarger stated that he did not have adequate time to review the Conditions of Approval that he had received just two days prior and would need time to potentially make additional changes. Those changes, although relatively minor, are provided here as Attachment A. These modified Conditions of Approval are hereby incorporated into the proposed project.

In short, the City’s proposed conditions and the lack of action on the proposed amendments to the project incorporated into the June 12, 2024 letter are unlawful as they impose standards on a builder’s remedy project that fail to accommodate the project as proposed.

B. The City’s Conditions Render the Project Infeasible.

Subdivision (d) not only prohibits disapproval, but also any conditional approval that “renders a project infeasible.” The HAA defines feasibility as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (Gov. Code § 65589.5(h)(1).) The HAA confirms that if a local agency “conditioned its approval in a manner rendering it infeasible for the development,” this constitutes a violation of the HAA and that local agencies bear the burden of proof. (Gov. Code § 65589.5(k)(1)(A)(i).)

Further, a local government is also prohibited from imposing any condition “including design changes, lower density, or a reduction of the percentage of a lot that may be occupied by a building or structure under the applicable planning and zoning in force at the time the housing development project’s application is complete, that have a substantial adverse effect on the viability or affordability of a housing development for very low, low-, or moderate-income households.” (Gov. Code § 65589.5(i).) Subdivision (i) confirms that conditions may only be based on “applicable planning and zoning in force at the time the housing development project’s application is complete.” This again confirms that if local governments did not have a compliant

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housing element at the time a project obtained vesting rights, the local government’s general plan and zoning standards are not “in force” and cannot be imposed. This subdivision also establishes that certain conditions are per se prohibited, including conditions that lower density or reduce the percentage of a lot that may be occupied by a building or structure, regardless of the builder’s remedy.

The Legislature has recognized that providing 20% of units at rates affordable to low-income households is already a significant burden on the feasibility of projects and therefore enacted specific protections to affordable housing projects to prevent de facto disapprovals through conditionals of approval that render projects infeasible or have a substantial adverse effect on the viability of a project. The applicant has identified the conditions that will have a substantial adverse impact on the feasibility, viability, and affordability of the project. Mr. Linebarger has proposed a strikethrough of staff’s proposed conditions that would be acceptable. In addition to those conditions that increase project construction costs, the applicant has highlighted the conditions that will make it significantly less likely that the project will be built.

For example, the proposed conditions limit the duration of the approval to the minimum allowed under state law, rather than the maximum timeframes allowed by state law in Gov. Code § 66452.6. The proposed conditions appear to be crafted to ensure that the project does not get constructed, which is the opposite of what the law requires. To meet its burden of proof the City’s proposed condition does not render the project infeasible, the City must demonstrate that the project can meet the expiration dates “taking into account economic, environmental, social, and technological factors.” (Gov. Code § 65589.5(h)(1).) The City’s proposed conditions are not supported by a preponderance of the evidence in the record to demonstrate that a project can begin construction within two years, taking into account economic, environmental, social, and technological factors.

It will be extremely difficult to prove the City has met this burden by a preponderance of the evidence, particularly where the City’s own Housing Element has already found some of the proposed conditions, including the City’s fees and park dedication requirements, to pose a significant constraint on the development of housing. (See Mountain View 6th Cycle Housing Element, Appendix D: Constraints Analysis, p. 245.).

As currently proposed, the Condition of Approval will have a substantial adverse impact on the feasibility, viability, and affordability of the project and therefore constitute a violation of the HAA. Mr. Linebarger has proposed modification to the Conditions of Approval to ensure that the Conditions of Approval do not make the project infeasible, and has incorporated the modified Conditions of Approval as part of the proposed project.

C. The HAA Limits the Fees that Can Be Imposed.

The City’s claims its authority to impose fees and other exactions for housing development projects is derived from subdivision (f)(3) of the HAA. The City again only focuses on part of

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the provision, ignoring the second half. The HAA states that the City may impose “fees and other exactions otherwise authorized by law that are essential to provide necessary public services and facilities to the housing development project.”
The City proposes conditions with a significant amount of fees for park land dedication and transportation impacts, without explaining how these fees are essential to providing public services. This is unsurprising, as neither park land nor transportation impact mitigation qualifies as a “necessary public services.” Even if the staff report made an assertion that park land dedication and transportation impact mitigation somehow qualify as necessary public services, the City must demonstrate how these fees would be used to provide services “to the housing development project.” Again, this is unsurprising, as these fees would simply be paid into the City’s general mitigation fund – not to serve the future residents of the project.

Moreover, again, subdivision (f)(3) is simply a general interpretive provision that does not override the specific protections the HAA provides to affordable housing projects. While the HAA does not provide a blanket prohibition on imposing fees, such fees must still comply with the HAA’s other limitations – namely fees projects must not render a project infeasible or have a substantial adverse effect on the viability of a project. And again, the burden is on the City to demonstrate that its fees meet that test.

The City’s proposed fees are not essential to provide necessary public services and facilities to the project and render the project infeasible, and therefore violate the HAA. Any attempt to impose such fees would be unlawful.1

D. The City Cannot Impose Conditions Based on Subjective Standards The HAA greatly limits a local government’s ability to deny a housing development project that complies with applicable, objective general plan, zoning, and subdivision standards, and prohibits local governments from applying subjective standards. (Gov. Code § 65589.5(j)(1)(A)- (B); see also Cal. Renters Legal Advocacy & Educ. Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 844.) The HAA defines “objective” as “involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.” (§ 65589.5(h)(8).) The test to determine whether a standard is objective is whether there is a single standard “knowable in advance, to be applied to all.” (Cal. Renters Legal Advocacy & Educ. Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 843.) Many of the proposed conditions fail to meet this test of objectivity as these conditions give unfettered discretion to public officials to make a subjective determination whether to approve building permit plans. For example, the conditions subject the lighting plan, parking plan, materials, paving plan, and more to the discretionary approval of the Zoning Administrator without any reference to objective standards. While the

1 As previously explained, the proposed park fees also lack an essential nexus and rough proportionality to the purported impacts of the project, and therefore also violation the takings clause of the United States Constitution.

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applicant does not oppose submitting the requested plans, the plans must be approved as submitted
Moreover, many of the City’s conditions are based on standards that are discretionary and not “applied to all,” and therefore an applicant cannot know if a standard will be applied in a particular. For example, the parkland in-lieu fees in MVCC Sec. 41.3 are only required when “dedication is impossible, impractical or undesirable as determined by the public works director, zoning administrator or city council as appropriate.” Not only is the “impossible, impractical or undesirable” a standard subjective, but the decision to require fees is up to the discretion of public officials “as appropriate.” Whether a public official deems a standard “appropriate” in any particular instance is not knowable in advance.

Many of the City’s code requirements are discretionary and are only applied to a project based on a subjective determination whether to apply the standard or not. The City continues to impose discretionary, subjective standards through conditions of approval in violation of the HAA.

E. Imposing Conditions of Approval Violate the Project’s Vesting Rights In 2019, the Legislature enacted the HCA to prohibit what the Senate Floor Analyses described as “the most egregious practices” by local governments that prevent the development of new housing. Specifically, the HCA added a new “preliminary application” that allows a housing developer to submit a preliminary application, which under the HAA “vests” the “ordinances, policies, and standards” in effect at the time a complete preliminary application is submitted. (§ 65589.5(o)(1).) The HAA defines “ordinances, policies, and standards” broadly to include “general plan, community plan, specific plan, zoning, design review standards and criteria, subdivision standards and criteria, and any other rules, regulations, requirements, and policies of a local agency . . . .” (Gov. Code § 65589.5(o)(4).)
The City’s proposed conditions are not tethered to any existing code standards that were in place at the time the preliminary application for this project was submitted. The conditions appear to be ad hoc requirements and rules that planning staff has determined should be applied to this specific project. The HAA clearly states that a project “shall be subject only to the ordinances, policies, and standards adopted and in effect” when a preliminary application was submitted.

The proposed Conditions of Approval subject the project here to a myriad of standards that were not in existence until the staff report for the project was published. Thus, these conditions violate the project’s vesting rights.

Despite the fact that very few of the City’s proposed conditions are unenforceable, the applicant has nonetheless voluntarily agreed to incorporate many of the conditions as part of the proposed project, except those that make the project infeasible. The proposed Conditions of Approval are provided as Attachment A.

F. The Applicant Demands a Response from the City
Throughout the application process, the City has demanded that the applicant identify the standards that violate the HAA and provide an explanation for the reasons that Mr. Linebarger

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asserts the standards violate the HAA. Mr. Linebarger has done so repeatedly, despite the fact that the HAA clearly places the burden on the City to demonstrate that it has complied with the HAA and to support its findings with a preponderance of the evidence in the record. Mr.

Linebarger has repeatedly requested a response to his submittals, and the City has failed to provide any response. Most egregiously, the City failed to share its draft conditions before publication and failed to even notify Mr. Linebarger that his project had been set for a public hearing.

In addition, Mr. Linebarger submitted various requests months ago, including a Below Market Rate Alternative Mitigation Program proposal; request for a waiver from the City’s 100% PV System Requirements; request for an encroachment permit; request for a waiver and deferment from certain capacity-based charges; and others. These proposals were never responded to, and imply ignored.

Mr. Linebarger has attempted to work cooperatively with the City, provided responses any time the City made a request for information, and has proposed to incorporate the vast majority of the City’s proposed conditions into the project, except for those that violate the HAA for the reasons explained above.

Mr. Linebarger demands a response to confirm whether the City accepts or rejects each of the proposed revisions, and provide an explanation for the reasons the City rejects any of the proposed revisions. Not only is this a sign of good faith, but the City is required to make such findings by a preponderance of the evidence in the record. (Gov Code § 65589.5(i); (k)(1)(A)(i)(I).)
Conclusion
Tower Investment’s proposed project qualifies as a builder’s remedy project and therefore must be approved as proposed. The multitude of conditions that staff have proposed violate state law, and therefore cannot be imposed. We request that staff accept the proposed revisions and, if staff rejects a particular revision, provide an explanation regarding why the proposed conditions do not violate the HAA.

Very truly yours,

____________________________________
Brian O’Neill

Exhibit A

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PL-2023-102

FIRE-RESISTANCE RATING FOR EXTERIOR WALLS BASED ON FIRE SEPARATION DISTANCE: The project shall comply with the requirements per the CBC, Chapter 7 (Table 705.5).

Mountain View City CouncilApril 8, 2025

Mountain View City Council
April 8, 2025