February 29, 2024

The City of San Jose refuses to process Builder’s Remedy applications and negotiates withdrawal of the destructive proposal for the Berryessa BART development


In January the City of San Jose notified developers who submitted applications under the “builder’s remedy” that they would not be processing applications received after June of last year. The builder’s remedy is a part of housing element law that allows residential development to proceed outside of local zoning constraints when a jurisdiction has missed the deadline to receive state certification of their Housing Element Update.  

The law has long carried the implicit expectation that developments would build more housing at higher densities than otherwise allowed, but San Jose received a wave of applications that scaled back the number of homes in projects near transit that were already approved. These new proposals raised additional concerns that higher-density apartments with significant inclusion of affordable homes were replaced with lower-density townhouses expected to sell for close to $1.5 million. All totaled, the downsized applications would cut over 4,000 new homes planned for the city. Nonetheless, the city’s actions are likely to trigger costly litigation.

The city-stated commitment to fighting these proposals appeared to have paid off last week when the property owner withdrew the most egregious proposal to remove housing at the 61-acre Berryessa BART Flea Market site.  The withdrawn revamp of the project would have reduced the scope of the development approved in 2021 from 3,450 housing units down to 940 with many luxury townhouses and condominiums. The builder’s remedy application would have resulted in a loss of 330 affordable homes right at the new station, part of the multi-billion dollar BART extension project. 

The announcement by Councilmember David Cohen to return to some version of the original plan came along with a city commitment to create a special property tax district to raise $100 million to fund onsite infrastructure improvements. But many of the details remain unresolved including the likely reduction of the over 3 million square feet of commercial office and the actual commitment to affordable housing. 

There is also ongoing concern about the other builder’s remedy applications that reduce housing around the city, including another major project in the BART plan area just across the street from the Flea Market site.  It remains to be seen if the land use consultant, Eric Schoennauer, who brokered the Flea Market deal and appears to have led the way on many of the downsized builder’s remedy proposals, will bring more property owners back to the table.  SV@Home remains committed to building high-density housing at our critical transit sites and throughout the city.  We will continue to monitor these projects and bring community partners in to advocate for the affordable housing that is needed.