Lucas Valley housing proposal asserts ‘builder’s remedy’ option

Marin County is facing its first “builder’s remedy” application, a plan to construct homes in upper Lucas Valley.

John Bogdasarian, chief executive of the Promanas Group, a real estate private equity firm in Michigan, has filed a preliminary application under Senate Bill 330 to secure his right to build a residential project at 1501 Lucas Valley Road with only ministerial review. Bogdasarian purchased the property in February for more than $5 million.

The developer has proposed 39 residences on the 61-acre parcel. On Friday, however, Bogdasarian said he is preparing a second SB 330 preliminary application that would vest his right to build as many as 150 homes at the site.

SB 330, known as the California Housing Accountability Act, mandates that if a city or county lacks a “substantially compliant” housing element, the jurisdiction is precluded from using its zoning or general plan standards to reject any housing project that meets certain affordability requirements.

To be eligible for the builder’s remedy, at least 20% of a developer’s proposed homes must be affordable for low-income residents or 100% of the homes must be affordable for moderate-income residents.

In a letter accompanying the application, Travis Brooks, an attorney representing the Promanas Group, wrote, “We note that pursuant to the state Department of Housing and Community Development’s (HCD) March 23, 2023 letter, the county has not yet adopted a housing element that is ‘substantially compliant’ with state housing element law, though the deadline to do so was January 31, 2023.”

Leelee Thomas, deputy director of the Marin County Community Development Agency, said Tuesday that the county is “waiting for HCD’s comments on the revisions to our housing element.”

According to the housing department’s website, it received Marin County’s revised housing element on May 17.

In his application filed on May 16, Bogdasarian says he plans to build 39 residences on the parcel. The plan includes 33 market-rate, single-family homes that would cover 99,132 square feet of building area. The project also would include six junior accessory dwelling units that would be deed-restricted as affordable for very-low-income residents.

Currently, there is just one residence on the parcel as well as a carport, water irrigation tank and a barn. Dirt roads provide access from Lucas Valley Road to the home.

The site at 1501 Lucas Valley Road is among 148 sites identified in the county’s housing element as having potential for development. As with many of the other sites, the zoning on 1501 Lucas Valley Road was changed to make it easier for developers to build there.

Previously, 1501 Lucas Valley Road was zoned A-60, an agricultural designation that allowed only one home per 60 acres. The housing element changed the zoning to 15 dwellings per acre while also limiting development at the site to just 1.7 acres for a total of 26 residences.

However, Brooks states in his letter, “The project’s 39 total units are permitted with a 50% density bonus above the base permitted 26 units — a bonus of 13 units.”

Under state law, developers qualify for a density bonus if either 5% of their project’s dwellings are affordable for very-low-income residents, or 10% are affordable for low-income residents.

“The project will also request multiple incentives, concessions, and/or waivers as appropriate, including a request to relax the county’s 1.7-acre base lot coverage restriction on residential development at the site to 2.2 net acres,” the letter says.

Under SB 330, the county would have no choice but to accede to Bogdasarian’s requests. The law does not permit local jurisdictions to use inconsistency with a zoning ordinance or general plan to deny a project or condition a project in a way that makes it infeasible.

In a May 24 letter, Sonja Trauss, executive director of YIMBY Law, cautioned the county that if it fails to comply with the law, the organization “will not hesitate to take legal action to ensure that the law is enforced.”

Brooks’ letter states that the developer “does not intend to rely on the builder’s remedy at this time and instead wishes to work collaboratively.”

Brooks adds that the developer is reserving his option to rely on his vested rights under SB 330 and modify the project in such a way that he would benefit from the builder’s remedy.

Under SB 330, if a developer submits a formal application within 180 days of submitting a preliminary application, then the zoning, design, subdivision and fee requirements in effect at the time the application was submitted remain in effect for the remainder of the entitlement process.

SB 330 allows developers who have filed a preliminary application to retain their SB 330 vested rights so long as the number of residences or square footage of construction are not changed by 20% or more.

Bogdasarian said the second SB 330 application that is being prepared for as many as 150 homes is something of an insurance policy, in case the county tries to stop him from developing the 39 homes.

“Then we would file for the absolute maximum density we think we could get accomplished on the site through legal channels,” he said.

Don Dickenson, a Marin County planning commissioner, noted that because of SB 330, the developer who received approvals from San Rafael to build an eight-story, 119-apartment complex at 703 Third St. could still choose to add more apartments to his project and make it even taller.

That is because Willis Polite, the owner of the property and managing partner of 703 Associates LLC, filed a preliminary SB 330 application in August 2022.