Developers are attempting to use a legal escape hatch to push new housing into South County open space. But county leaders have found a loophole of their own.
The Santa Clara County Planning Commission on Thursday voted 5-2 against appeals for two different projects under the same developer. To push the projects through, the developer has tried to invoke a state law known as builder’s remedy — which allows developments to ignore restrictions on building height and density when local governments lack state approval for their housing plans. The county missed its original deadline two years ago, which opened the door, until receiving state approval in January. But county planners have rejected the plans based on technicalities of missed application deadlines and incomplete information.
Commissioners Marc Rauser, Aimee Escobar, Robert Levy, Jennifer Chang Hetterly and Jean Cohen voted to deny the appeals. Commissioners Margaret Belska and Sean O’Donoghue voted for the appeals.
“While I do think there is a need for housing and everything — and at first I was very much for (builder’s remedy) as a concept — we are now stuck with something that is one of the poorest planning things and it creates headaches for the county and headaches for the neighbors,” Rauser said at the meeting. “I’m deeply committed to process and we need to follow that.”
In April 2024, developer Mike LaBarbera submitted applications for two projects in unincorporated areas near South San Jose. One proposal is for developing 49 single-family homes on 19 acres at 19780 Almaden Road. The second is for 20 single-family homes, four being backyard homes, at 6591 Woodcliff Court on approximately 97 acres.
County officials told LaBarbera both applications lacked crucial information required by the fire marshal, environmental health, the county geologist and other offices. LaBarbera resubmitted both applications, and this cycle repeated until county officials told LaBarbera he missed a 90-day deadline on the most recent round of submissions. According to the county, that removes the project’s shield from local land use regulations under builder’s remedy, or Senate Bill 330.
Labarbera pushed back Thursday through his attorney Travis Brooks and architect Kurt Sanderson. His team argued he diligently complied with each of the county’s resubmission requests and rejected the notion that formal applications needed to be deemed complete in 90 days to preserve the initial one.
They argued some information requests were irrelevant or outright unreasonable.
“We can’t recommend to our client that we spend $150,000 on geotechnical reports until we know we have a project moving forward. Then we have no problem doing it,” Sanderson said at the meeting. “We have pushed back on that the whole time. I want to make that clear to the commission — we have worked with staff, but they are not meeting us.”
County planners emphasized the decision doesn’t kill the projects entirely — it simply forces the developer to comply with local density laws and other zoning requirements. They also pointed to a statistic painting a broader picture of the county’s builder’s remedy situation. Developers have submitted more than 40 builder’s remedy applications to the county, totaling more than 6,500 homes. Of those, approximately 10 applications have moved forward after being deemed complete.
Some commissioners questioned if the county’s requirements were reasonable.
“I definitely agree … that this application is not complete. But I’m not confident in the 90-day rule that we’re enforcing,” O’Donoghue said at the meeting.
Scores of residents and written letters protested the projects. That includes environmentalists such as Alice Kaufman of Green Foothills. She argued the projects would endanger the Alamitos Creek wildlife corridor and destroy Oak woodland to clear the way for homes. She acknowledged the region needs to build more housing but in urban, infill locations — not open space habitats.
“How many times does the county staff need to ask for the information over and over and not get it?” Kaufman said at the meeting. “It doesn’t bode well for the future progress of this process.”
Contact Brandon Pho at [email protected] or @brandonphooo on X.
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