Last December we highlighted how the Cupertino City Council was making changes which would drastically alter the character of its Single Family Neighborhoods. Another risk to the single family neighborhoods is what is called Builder’s Remedy.
Builder’s Remedy is a new interpretation of a California Housing Accountability Law (1990) which allows developers to ignore the zoning requirements of the area. They can build whatever they want as long as 20% of the homes are reserved for low income housing or 100% for middle income housing. Builder’s Remedy comes into play if the City does not have an approved Housing Element (HE) plan with the state’s Department of Housing and Community Development (HCD)
October 2022 HE Plan
In spite of the challenges posed by the pandemic, the City of Cupertino had a draft of the Housing Element (HE documents available here) ready in October 2022 for public review. This was a quarter before the filing deadline of January 31, 2023. The plan had provisions for 117% of the requirement the city was expected to fulfill.
Default by Three Days
After the November 2022 elections, JR Fruen & Sheila Mohan replaced Darcy Paul & Jon Willey in the Cupertino City Council. Along with the incumbent Hung Wei, this led to shift in control of the council, with the resident-focussed leaders being in the minority. JR Fruen is the founder of Cupertino For All, a YIMBY lobbying group, and has received substantial funding from real-estate related interests both for his City Council Campaign, and for running a PAC (2018) supporting builders interests.
The new city council submitted the HE to the HDC on February 3, 2023, three days after the official deadline of Jan 31, 2023. Not having the plan on file, by the January 31st deadline, put Cupertino in automatic default of the HAA and opened the flood-gates for Builder’s Remedy projects and YIMBY lawsuits.
Delaying the Housing Element Plan by Nineteen Months
HCD reviewed Cupertino’s Feb 2022 submission, and wrote back to the city on May 4, 2023 with the ruling that:
“The draft housing element addresses most statutory requirements; however, revisions will be necessary to comply with State Housing Element Law (Article 10.6 of the Gov. Code)
It also stated that:
“HCD considered comments from South Bay YIMBY, YIMBY Law and Greenbelt Alliance, YIMBY Law, David Kellogg, Cupertino For All”.
Yes, you read it right. Cupertino For All, the organization incubated by JR Fruen, demanded changes in the HE submitted by Cupertino, where JR Fruen himself is a council member!
Earlier in August, 2022, JR Fruen, had written to the City, as the Policy Director for Cupertino For All, asking the council to not consider the pipeline projects at Vallco & Hamptons as part of the HE, asking for a larger buffer, and questioning why more sites were not being up-zoned. (Page 81-83 of communications for Aug 16 meeting)
After getting elected to the City Council, with the support of Mayor Hung Wei & Sheila Mohan, JR Fruen drove the process of redoing the HE with the final plan submitted in March 2024, more than an year after the Jan 31, 2023 deadline; it was accepted in September 2024. During the nineteen months period the HE was delayed, the council removed many pipeline projects from the HE, added more sites, upzoning them along the way without adequate community input.
The final HE is expected to increase the total number of housing units in Cupertino by 30%! Delaying the HE by nineteen months, to satisfy YIMBY organizations’ desire to upzone sites showed a complete disregard to the risk posed by Builder’s Remedy.
During these one and a half years, Cupertino had no defenses against Builder’s Remedy projects
Builder’s Remedy Proposals
There are two projects which we want to discuss in this post which give us a window for what is in store for us in the future.
20739 Scofield Drive
This proposal is to construct a FIVE story, 20 unit condominium to replace a single family home on Schofield Drive near Faria Elementary School.
Proposed five-story condominium complex in a single family neighborhood
The single family home which will be replaced by the five story condominium
Vista Heights (former McDonald Dorsa quarry)
This proposal is combining three parcels zoned for Residential Hill Side (RHS) and converting them to a development with 35 homes and a commercial gymnasium. The entry to the complex will be via a road which ends inside Linda Vista Park. The City RHS Ordinance is designed to preserve the natural setting of the hillside and protection from natural hazards like fire & landslides, but it will no longer be applicable since this is a Builder’s Remedy project.
A similar proposal on this site requesting a General Plan Amendment had been considered by the City Council in 2019 but did not receive a go-ahead due to the steepness of the land, and the amount of regrading needed to make the plan feasible.
Neighborhood Impact
Both these projects are fundamentally altering the nature of the neighborhoods. The Scoffield drive plan is putting a five-story building in the middle of a quiet tree-lined street in a single family neighborhood.
Street View of Scofield Drive: A quiet residential street
The Vista Heights project will require significant regrading to carve out building-pads for the 30+ homes, on a steep hill. This will impact the stability of the hill, possibly increasing the risk of landslides and putting neighboring homes at risk. It will also route commercial traffic through Linda Vista Park, coming down a steep sloping road, impacting the safety of the residents, especially children using the park.
This trend of building five story buildings on single family lots will drive existing homeowners out of Cupertino and also discourage future single family home buyers from Cupertino. Cupertino homes demand a premium pricing, and new buyers will be reluctant to pay that premium if the lot next door can be converted into a five story condominium.
What Can We Do?
These projects serve as a reminder of the risk to our quality of life when our city council does not represent the interests of existing residents, but prioritizes maximizing the profits of real estate developers.
For the time-being, the city will not be required to accept any new Builder’s Remedy projects since the Housing Element Plan has been accepted by the HCD. However, there are other laws which can lead to similar construction (eg: SB10 which allows 14 units on a single family lot). A new Housing Element plan will also be required in a few more years.
The residents of Linda Vista neighborhood are petitioning the City Council to review those decisions, and Scofield residents have actively pushed back against the developer. However, the best way to preserve our neighborhoods is to elect a city council which is not beholden to builders’ interests and will keep existing residents’ interests in mind when developing the city.
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