A rendering of Mallard Pointe.
The so-called builder’s remedy penalizes cities that have failed to get state approval for their plans to accommodate new residential growth.
Without the state’s sign-off on that plan, known as the housing element, developers can skirt local zoning codes and propose projects far taller and denser than might typically be allowed — so long as 20% of the units are rented at affordable rates to qualifying tenants.
Since the beginning of 2023, at least 98 builder’s remedy projects totaling more than 13,000 units have been proposed across 18 Bay Area cities and counties that lacked state-certified housing elements, according to a Bay Area News Group survey of local officials and planning documents throughout the region.
The exact number of builder’s remedy projects is unclear: The state doesn’t keep a tally, and it’s likely developers are using the rule in other cities as well.
But at least one of the builder’s remedy projects comes from Marshal Rothman, a Mill Valley developer who has been trying to get Fairfax to approve a development proposal to build 10 homes on a 100-acre parcel for nearly a decade. His new proposal, which adds a stand-alone, 15-unit condominium complex, meets the builder’s remedy requirements.
On a related note, the City of Belvedere recently dodged a builder’s remedy project threatened by Thompson Dorfman after it approved 40 waterfront homes and apartments instead. The City Council voted 3-1 to overturn a Planning Commission decision to reject the 40-unit development at 1-22 Mallard Road on Belvedere Lagoon, the Marin Independent Journal reported.
Plans by the Mill Valley-based developer include replacing the Mallard Pointe luxury apartments, built in 1951, with 16 waterfront homes and a granny flat backed by a 23-unit apartment complex — the first built in the city in 34 years.
If the council had not sided with the developer in its appeal, Thompson Dorfman threatened to build a builder’s remedy project nearly twice as large.
After years of resistance by the city and local opponents, the builder had filed an alternative application this month under the state builder’s remedy that calls for a 70-unit project, 75 percent larger than the one turned down by the Planning Commission.
Belvedere’s housing element has yet to gain approval from the state Department of Housing and Community Development. Until then, the city is vulnerable to builder’s remedy applications.
The larger project is now off the table, while the 40-unit development will proceed. The project will go back to the Planning Commission to undergo a design review.
Thomas Dorfman aims to break ground in mid- to late 2025.