Developer threatens litigation over Mountain View builder’s remedy project

A developer in Mountain View is threatening litigation if the city does not drop its conditions of approval and allow a builder’s remedy project to proceed.

Forrest Linebarger of Tower Investment wants to build a seven-story, 85-unit condominium development on a half-acre site, replacing an existing family home and empty lot at 294 and 296 Tyrella Ave.

The proposed development exceeds local zoning standards but can bypass these requirements under builder’s remedy. The project was submitted at a time when Mountain View did not have a compliant housing element, and meets the provisions of the state housing law because it has designated 20% of the units as affordable for lower-income families.

The project has been contentious since the get-go, with the developer and pro-housing groups alleging that the city of Mountain View has tried to “execute an end run around” builder’s remedy by imposing unlawful conditions of approval. Local residents have also criticized the project for being too tall for the lower-density neighborhood.

The threat of litigation came to a head at a public hearing last month, compelling city staff to postpone a recommendation to move the application forward for consideration by the City Council.

On Nov. 13, the planning division received a letter from Linebarger’s attorney, requesting more than 30 substantive revisions to the city’s conditions of approval as well as other claims related to the processing of the project, according to Senior Planner Krisha Penollar.

The letter was submitted the same day as the public hearing, and staff did not have enough time to fully review and respond to it. To give the planning division more time, Penollar requested a continuation of the hearing to a future date.

Letters threatening litigation

Earlier this year, Mountain View received letters from YIMBY Law and the California Housing Defense Fund threatening litigation if it attempted to impose unlawful conditions of approval on the Tyrella project.

The Nov. 13 letter from Linebarger’s attorney has similar objections. It states that the city has proposed over 200 conditions of approval, and that while Linebarger was willing to comply with most of them, there are some that would render the project infeasible.

The letter specifically calls out Mountain View’s park land dedication and transportation impact fees as a contravention of state housing law – an issue that recently came up with another builder’s remedy project in which the city ultimately reached a settlement agreement with the developer.

The letter also alleges that the city failed to properly notice the public hearing and did not provide enough time for Linebarger to review all of the conditions of approval.

Linebarger referred to these claims at the hearing, stating that he had been requesting to see the conditions of approval for more than a month and did not receive them prior to the hearing. He also said he was not informed about the meeting until he received a phone call from the city a day before, on Nov. 12.

“I really do think the city should spend a little time and try to coordinate this so that they do not put City Council in the unfortunate situation of having to approve the project with infeasible conditions, or alternately go down the road of a potential lawsuit,” Linebarger said.

However, the city says that it “complied with the legal requirements to notice the public hearing, which included a mailed notice to the owner’s address.”

Public reactions

The public still could comment on the Tyrella project at the Nov. 13 hearing, even though a final recommendation was postponed to a later date.

Several residents living in the neighborhood disapproved of the plans, citing concerns that the seven-story building would tower over single-family residences and bring more traffic and parking problems to the street.

“I think it’s time the city of Mountain View stop taking requirements from interests outside of the city, and put the interest of the residents that live here first,” said Roger Noel, a 42-year resident of Tyrella Avenue.

“I think you should do everything you can to push back on this project, even if it means going to court and demonstrating to the residents who live here and pay taxes here that you’re on their side,” he said.

Tim Palmer, another Tyrella Avenue resident, also cited concerns about the cumulative impact of traffic, noting that a four-story multifamily development is being proposed on the same street.

For Nicky Sherwood, who represents the Wagon Wheel Neighborhood Association, the lack of transparency from the developer was especially problematic. At the time of the hearing, the project plans were not available online. “My concern (is) that we don’t have much visibility into this project like we normally do. There’s no full data set or anything,” she said.

The public will have more opportunities to weigh in on the project, including at a joint administrative zoning and subdivision committee hearing, although the date has not been publicized yet, according to city records.