Debate over 'builder's remedy' law could cost SJ thousands of housing units in Berryessa

ByDustin Dorsey KGO logo

Monday, November 6, 2023

Debate over law could cost SJ thousands of housing units

Mayor Matt Mahan says a developer is trying to evoke a state law called "builder's remedy" to build fewer homes in San Jose's Berryessa neighborhood.

SAN JOSE, Calif. (KGO) -- A debate has been sparked in San Jose over what to do with the land next to the new BART station in the Berryessa neighborhood.

The city wants to bring thousands of housing units, but the land's owner says it may not be feasible and is offering to build less housing.

The city council approved zoning on the Berryessa Flea Market's land next to the new BART Station to bring between 1,700 and 3,400 housing units and millions of square feet of commercial space.

But, Mayor Matt Mahan says the developer is trying to evoke a state law called "builder's remedy" to actually build fewer homes.

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"The entire premise of bringing mass transit, like BART, into San Jose is that we're going to put dense jobs and housing near transit so that we don't continue to sprawl out," Mahan said. "And this, frankly, is a perversion of state law."

"Builder's Remedy," or formally known as Senate Bill 330, was created to get housing projects approved in cities deemed by the state to not have substantially compliant housing.

Erik Schoennauer is the land use consultant for the flea market ownership and says San Jose has some of the lowest housing production in America. He adds that their housing plans are not always feasible to build.

Instead of a housing plan that includes so much unwanted office development, Schoennauer says the owners want to build a project with fewer units and less commercial space to allow work to get done now to help the housing crisis.

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"The city's plan right now, it can't be built with having the site required to be office when there's no office market," Schoennauer said. "Ours would be feasible to finance and build and would yield up to 1,128 units."

This neighbood's Councilmember David Cohen says builder's remedy was not intended to downsize housing projects.

He believes even if it takes longer, the city should push for more units instead of less.

"To sacrifice the loss of that economic engine of the flea market really requires that we maximize the value of this property and this new proposal does not maximize the value of this property. In fact, it way undervalues the property," Cohen said.

If the city is deemed to be compliant with housing needs when the plans were made, "builder's remedy" cannot be used and the city can deny the downsized plan.