San Rafael group challenges ‘builder’s remedy’ housing plan

A gate stands at the border of a 19-acre parcel along Deer Park Avenue in San Rafael on Thursday, June 1, 2023. A developer wants to build dozens of homes at the site, which used to belong to Dominican University of California. (Alan Dep/Marin Independent Journal)

A neighborhood group opposed to a San Rafael housing proposal is questioning the legitimacy of several “builder’s remedy” applications the developer has filed.

Ray Cassidy/Dominican Valley LLC has submitted five different applications for developing a 19-acre parcel adjacent to Dominican University of California. The proposals range from 29 residences to 75.

In a detailed 28-page letter to San Rafael, a committee of Save Dominican Valley writes that the applications “contain significant material misstatements, inaccuracies, and factual misrepresentations.”

“As a result, the applicant’s SB 330 Preliminary Application Forms and the city’s acceptance of them should be rescinded and the applicant directed to resubmit the forms,” the letter says.

Jean-Pierre Guittard, who heads the committee, said, “These applications were deficient and inaccurate in a lot of important respects, and therefore should not have been approved by the city.”

Cassidy could not be reached for comment.

The so-called builder’s remedy, which was established by a provision of the Housing Accountability Act, mandates that if a city or county lacks a “substantially compliant” housing element, the jurisdiction is precluded from using its zoning or general plan standards to reject any housing project that meets certain affordability requirements.

If developers submit builder’s remedy applications while a jurisdiction’s housing element is out of compliance, they will secure a vested right to develop the project — even if the jurisdiction eventually adopts a compliant housing element before the project is approved.

Cassidy filed his applications before the state approved San Rafael’s new housing element on June 22.

San Rafael has notified Cassidy that all five of his applications are potentially vested under the “builder’s remedy,” even though they contain deficiencies that currently disqualify them. The applications are deficient because they fail to meet affordability requirements for using the builder’s remedy and qualifying for state density bonuses.

To qualify for the builder’s remedy, at least 20% of the residences in a project must be affordable to low-income households. Developers qualify for a density bonus if either 5% of a project’s dwellings are affordable for very-low-income residents, or 10% are affordable for low-income residents.

Under state law, however, the developer is allowed to amend the applications to cure these deficiencies while still retaining vested rights, provided that the number of homes or total square footage of the project doesn’t increase by more than 20%.

Guittard said the committee submitted its letter to the city on Sept. 8 and has received no response.

San Rafael Mayor Kate Colin says Cassidy’s applications are only preliminary.

“Because the city has not yet received a formal development application, the city currently has no application to process,” Colin said. “We recognize there is neighborhood concern about the project applications, and city staff will carefully review all application materials, once received, to ensure that they adhere to state law as well as our local codes and land-use policies.”

Colin added that she looks forward to hearing the concerns of local residents “at future city meetings when the project is being discussed.”

Nira Doherty, a lawyer for the city, said San Rafael is not required to take specific action on or analyze a project until the applicant submits a formal development application.

“At that stage of the process, the city will review the formal development application for any material misstatements, inaccuracies and factual misrepresentations.” Doherty said.

Among the deficiencies cited in Save Dominican Valley’s letter are alleged violations of local, state and federal regulations related to wetlands, fire safety and development requirements at the “wildland-urban interface,” or WUI.

The committee said the proposed building site is traversed by at least six “riverine” streams, so it is subject to federal and state regulations in addition to San Rafael regulations.

According to the committee’s letter, the entire development site is located in the WUI, so San Rafael’s requirement for 100 feet of defensible space around structures in the WUI makes all five proposals infeasible.

The committee also states that portions of the building site have been used historically as a dump site. According to its letter, the contents of this dump site include household waste, plastics, abandoned appliances, construction debris, house paint, refrigerants, used car batteries, motor oil and other toxic leaching materials.

“So the developments as proposed simply can’t stand,” Guittard said.

While builder’s remedy projects are not subject to denial by local elected officials, they are required to comply with the California Environmental Quality Act. Some legal experts, however, have questioned whether a jurisdiction could legally deny a builder’s remedy project based on the information reported in a CEQA review.