where a project, although not zoned "mixed use," would otherwise have required ground-floor commercial]; HCD Technical Assistance Letter to City of San Jose (May 20, 2022) [removal of mixed-use requirements as illustration of potential concession].) In addition to utilizing a concession to deviate from the alleged PRCSP commercial requirement, the Project would be entitled to unlimited waivers of development standards under State Density Bonus Law, meaning the Project could unilaterally modify an unlimited number of applicable City development standards (i.e., height, setbacks, and open space). Finally, State Density Bonus Law has reduced parking standards compared to the City's Code, with no guest parking spaces required. Intracorp would prefer to proceed with the Project as currently proposed but in the event a State Density Bonus Law project is necessary, Intracorp intends to utilize all available State Density Bonus Law benefits.
If the City wishes to have any commercial space as part of the Project, we urge the City to confirm agreement with Intracorp's interpretation of the PRCSP commercial requirement.
We would like to remind the City that there are significant penalties and fines for violations of the HAA. (Gov. Code§ 65589.S(k)(l)(B)(i), (k)(l)(C), and (l).) In addition to attorneys' fees, court-imposed fines for failing to comply with a court order begin at $10,000 per housing unit and could be much higher. If a court finds bad faith, there is a minimum mandatory fine of $50,000 per housing unit. Bad faith includes an action that is frivolous or otherwise entirely without merit. We believe the City's interpretation easily meets that legal standard.
We appreciate the City's prompt attention to this matter and look forward to receiving written confirmation that the Project may proceed as proposed. 123 of 123
Sincerely,
Cox, Castle & Nicholson LLP
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Morgan L. Gallagher
Partner