The state is not on board with Cupertino’s interpretation of legislation that determines when a development proposal expires. The city is fighting back despite legal uncertainty.
Cupertino officials sent a response to the California Department of Housing and Community Development earlier this month, defending their reading of the timeline developers have to resubmit a preliminary application per the Permit Streamlining Act. The city argued for a “plain meaning” of the legislation, which gives a developer one 90-day period to correct their preliminary application before it expires — the project is null and void afterward.
The state took issue with the interpretation. Housing department officials said developers have an unlimited number of 90-day periods to resubmit applications because the timeline continuously resets after each incompleteness determination, according to a violation notice the city received last month.
The notice said the city’s interpretation “makes the process more difficult for diligent applicants to benefit from the protections of the (act’s) preliminary application process,” and called it a “violation of state housing law.” Cupertino submitted its response disputing the state’s interpretation after receiving the notice.
It’s unclear what will happen legally if Cupertino ignores the housing department, which is reviewing the city’s recent response, a state spokesperson said. Advocates said the dispute could land the city in hot water as the state pushes for more housing.
Ryan Patterson, a land use and real estate attorney, represents a developer with a 20-condo project on Scofield Drive. Cupertino officials said the project’s preliminary proposal has expired due to the 90-day window. Patterson’s client, in collaboration with Yes in My Backyard (YIMBY) Law and the California Housing Defense Fund, sued the city in April, arguing the project should have never been considered expired. The lawsuit is still pending, along with another suit over a 33-home development proposed near Linda Vista Park the city deemed expired.
Patterson said the city is wasting time and taxpayer dollars fighting for its incorrect interpretation because the legislation is clear. Both projects could bypass local zoning if the Santa Clara County Superior Court rules in the developers’ favor because of builder’s remedy, a state law enacted when a city is late getting approval on its housing plan. Cupertino falls in that category.
“We’ve won this argument in court already, and we fully expect to win it again in Cupertino,” Patterson told San José Spotlight. “(The state’s) notice of violation makes it crystal clear: Cupertino is breaking the law and will be held accountable. I have to wonder why the city is fighting this losing battle.”
Interim City Manager Tina Kapoor declined to comment because of the pending litigation.
Mayor Liang Chao referred San José Spotlight to her news release statement when asked for comment.
“Our goal is to ensure all applications meet clear and consistent standards and we treat everyone fairly,” Chao said in the statement. “We look forward to continuing a constructive dialogue with the state as we work toward shared housing goals that also reflect our community’s priorities.”
Cupertino is not the only municipality dealing with the 90-day expiration period. Los Gatos asked Santa Clara County Superior Court for clarification on the provision in March after receiving two builder’s remedy applications for nearly 300 homes. The town is still waiting for a judicial interpretation.
Sonja Trauss, executive director of YIMBY Law, appreciates the state’s interpretation of the 90 days. She said cities such as Cupertino need to stop standing in the way of needed housing. Cupertino must build at least 4,588 homes by 2031 to comply with state mandates, 1,880 of which must be affordable to low-income residents.
“(Cupertino’s interpretation) shows that they’re desperate to prevent housing in their city,” Trauss told San José Spotlight. “That’s something that impacts our whole economy.”
Contact Annalise Freimarck at [email protected] or follow @annalise_ellen on X.
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