Sonoma Highway developer tries for 64 apartments, city sticks to 50
Sonoma city officials have, at least temporarily, rejected a rarely used legal tactic that could have demolished a historic bungalow on Sonoma Highway and replaced it with a 64-unit apartment complex.
In a first for Sonoma, on Feb. 6, the developer, DeNova Homes, filed a “builder’s remedy,” a measure taken to force municipalities to permit construction of a project that may not follow city code.
The developer sought to demolish the Evelyn L. Montaldo house, a 1939 Spanish Colonial Revival design, which was deemed eligible for the California Register of Historical Resources in a July 2021 evaluation. They planned to replace the home with 64 apartments, a 14-unit increase from the 50 presented most recently in the city’s planning process.
“Overall, I am sorry to see any housing project become adversarial, and I don’t really see the reason for it,” said Larry Barnett, chair of the Sonoma Planning Commission. “The city and planning commission support this project, I believe, and I don’t think the alternatives to demolishing the home have been adequately explored. I hope that can still happen.”
City officials rejected the Concord-based company’s builder’s remedy Monday, according to Sarah Tracy, a public information officer for the city.
It’s not known if the developer will appeal the decision. Phone calls to DeNova Housing officials were not returned as of Wednesday morning.
DeNova’s action was filed just days after the city submitted its housing element to the State Department of Housing and Community Development (HCD). The state-required document identifies where and how the city could add its allotted 311 units of housing from 2023-2031.
The Sonoma City Council approved the housing element Jan. 31, the day it was due. A week later, DeNova officials tried to leverage the little-used “builder’s remedy” because the document has not yet been certified by the state, creating a legal loophole, their attorneys argued.
DeNova’s rare application serves as a local example of a statewide phenomenon where developers “test” the boundaries of the legal tool that allows housing construction that may otherwise be denied by a city.
The “builder’s remedy” was introduced in the California’s Housing Accountability Act, a 1990 law that sought to cut through red tape to get more homes built, in the face of a statewide shortage.
“What (the builder’s remedy) is trying to do is give teeth to the housing element law … you're supposed to plan for growth every eight years and provide enough housing to accommodate the growth of your community,” Permit Sonoma policy manager Bradley Dunn said. “However, we know the California has not done that. That's why housing is so expensive.”
In 2021 DeNova first presented a 55-unit complex that paid homage to the property with a Spanish-style design and the name, Montaldo Apartments, while removing the home and a large oak tree. But plans changed after an independent report determined the house and tree could have historic value.
“DeNova has to make the case that the historic structure is not worth keeping,” Barnett said, adding that their most recent application called for removing the home but keeping the oak, which would have to be approved by the city.
After a scaled-back, 50-unit version of the project was reviewed in September, the city is now “preparing to solicit professional environmental services to evaluate the environmental impacts of the Montaldo Apartments,” Tracy said.
While once uncommon, a recent push from the state legislature to remove bureaucratic processes that can slow residential building has made such remedies more popular. Just like Sonoma, in February a developer applied to build two 44-unit multi-family projects in Los Altos Hills because the city’s housing element had not been certified by the state — a move the city plans to reject.
The remedy is not limited to housing elements, but can be applied any time a city falls out of compliance with its code. Last year, when the city of Santa Monica “accidentally abolished its own zoning code for most of the 2022 calendar,” according to Slate, developers jumped at the chance to add housing in a city that has only approved 4,500 new units in the past 20 years. Santa Monica was flooded with 16 “builder’s remedies,” one of which sought to construct a 15-story, 2,000 unit complex.
Whether these attempts will prove fruitful remains to be seen.
In a review of the issue posted to the university’s website, Christopher Elmendorf of UC Davis School of Law wrote, “... the builder’s remedy is so poorly drafted and confusing that developers of ordinary prudence haven’t been willing to chance it.”
It will likely force cities to reexamine their process, however.
“At the end of the day, we have a law that says you're supposed to build housing to accommodate growth for the next eight years, and we haven't done it for decades,” Dunn said about California. “(The builder’s remedy) is a tool for the development community to put pressure on jurisdictions to come up with a plan.”
Contact Chase Hunter at firstname.lastname@example.org and follow @Chase_HunterB on Twitter.
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