Cupertino settles YIMBY housing lawsuit, agrees to “builder’s remedy” penalty

Cupertino settles YIMBY housing lawsuit, agrees to “builder’s remedy” penalty

YIMBYs are celebrating a new settlement with the city of Cupertino that offers a shiny prize for housing advocates: the promise of more homes in the Silicon Valley enclave.

Last February, YIMBY Law and the California Housing Defense Fund slapped a dozen Bay Area jurisdictions, including Cupertino, with lawsuits over their failure to meet last year’s Jan. 31 state deadline for housing elements detailing how they plan to approach development in the next eight years. By 2031, the nine-county Bay Area needs to sign off on more than 441,000 new homes.

But Cupertino, along with cities like Palo Alto, Richmond and Daly City, missed the deadline, prompting the pro-housing nonprofits to file suits compelling them to comply with state law, and reminding them that they’re subject to the “builder’s remedy,” which allows developers to push through projects that are larger than local zoning laws would otherwise permit.

Cupertino last year had one application for a “builder’s remedy” project, though the developer recently said the project was on hold.

In a news release, YIMBY Law said that, as part of the settlement, Cupertino will revise its plans for housing in accordance with state law. The city has also agreed to follow the “builder’s remedy” in the time being.

“Cupertino recognizes it must plan for housing,” YIMBY Law Executive Director Sonja Trauss said in a statement. “The city missed its legal deadline, and that has consequences. Fortunately, the consequences of today’s settlement will be more housing.”

Cupertino must approve 4,588 new homes by 2031, with 1,880 of them designated for low-income households.

In an email, Cupertino Deputy City Manager Tina Kapoor said the city worked with the nonprofits to “reach a resolution that establishes a clear timeline for finalizing the housing element, streamlines environmental review and clarifies rights available under the ‘builder’s remedy’ provisions of the Housing Accountability Act.”

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“The settlement will speed the adoption of a compliant housing element by the City Council, and the provisions included underscore the city’s commitment to promoting responsible development within our community,” she added. “We look forward to a collaborative and efficient process as Cupertino works towards certification of the housing elements and fulfilling its housing responsibilities.”

Vice Mayor J.R. Fruen said “the city is right to welcome the result.”

“This will allow us to be able to proceed in an expedited and streamlined fashion to achieve a certified housing element that we should all be proud of, and that we can put into action quickly,” he told the Mercury News.

Fruen said the city is getting close to approving the housing plan.

Not everyone on the council, though, agreed with the city’s decision.

In an email, Councilmember Kitty Moore slammed the settlement, saying that the nonprofits won a “complete and horrifying bypass of CEQA,” a state environmental review law, “due to the city’s consultants failing to produce housing element documents in a timely manner under the new council majority.”

In its slew of lawsuits, YIMBY Law and the California Housing Defense Fund focused on cities that haven’t always been amenable to building the kind of high-density housing that many housing advocates champion.

Over the years, Cupertino has earned a reputation among advocates for resisting state housing mandates. Fruen hopes people see that Cupertino is “clearly headed down a different path” than other cities sued by the nonprofits.

“The prior City Council created much of Cupertino’s anti-housing reputation through its own actions,” he said. “It’s unfortunate that Councilmember Moore, as part of that majority, would fail to take responsibility for it now. If she’s concerned about a lack of time for extra environmental review, she need only look in the mirror — she could have taken the process seriously from the very beginning.”