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After Menlo Park said a proposed development at the former Sunset magazine headquarters does not qualify for exemptions under state law, a pro-development law firm is threatening to sue the city if it does not allow the project to continue.
“Either the city is ignorant about the law or is deliberately misrepresenting the law. Some of this is complicated and there’s always going to be some ambiguity and need for argument in the law, but a lot of it isn’t,” Attorney Jack Farrell said in an interview with this news organization.
Farrell is a research attorney at YIMBY Law, which advocates for housing developments and improving the process of building housing. YIMBY refers to the “yes in my back yard” movement countering the “not in my back yard” proponents. It is also the legal arm of YIMBY Action. YIMBY Law has been following the project for a while and has also threatened to sue the city if it refused to continue developing affordable housing on Menlo Park’s downtown parking lots.
Menlo Park determined that the project at 80 Willow Road does not include enough housing to qualify for streamlined review, does not meet objective standards, does not fairly distribute affordable housing and does not meet several required criteria.
While YIMBY law is not necessarily disagreeing with some of the city’s findings, for many, it says the city is too late.
“Through the course of several letters, the most recent city letter names a series of issues which were not named in prior letters,” Farrell said. “That violates the Permit Streamlining Act, because you can’t just bring in new criteria after the fact that weren’t mentioned before, because that lets cities either invent new criteria or just add new things to the process.”
“So the developers have to take more time, spend more legal fees, respond to new things, make changes to the project, and just delays, beyond the fees and extra expertise, can kill projects and make financing infeasible,” he said.
The developer N17, which has its own attorney, claims that most of the city’s most recent objections are moot since the city did not bring them up earlier. This includes the city claiming the project is not considered an affordable housing development because of the percentage of affordable housing.
Even if N17 and YIMBY Law are right, there are still the city’s other objections.
One of the city’s objections to the project is that it is not surrounded by urban uses and centers on whether the open space protecting the San Francisquito Creek, which borders the project, counts as an urban use. Under state law, for the project to be eligible for some streamlining rights, at least 75% of the surrounding parcels must be urban uses. While part of the creek is not open to the public, Palo Alto’s Timothy Hopkins Creekside Park is past the creek next to the development.
Parks are generally considered an urban use.
Further, the city claimed that at least some of the development is on wetlands.
The city also says the project would develop protected habitats for the California red-legged frog and California coast steelhead, which are federally protected, and habitats for the Western pond turtle, hoary bat, pallid bat, snowy egret, and saltmarsh common yellowthroat, which are protected under state law.
The developer disagrees with the city’s interpretation of the law.
In addition to threatening a lawsuit against the city, YIMBY Law has reported Menlo Park to the California Department of Housing and Community Development and the state attorney general.
Both agencies have the right to sue Menlo Park under state housing law but they could also issue a written determination. If HCD or the attorney general’s office issues a written determination and the city later loses a lawsuit against the developer on an issue addressed in the determination, the city could be on the hook for additional legal fees, Farrell said. A determination can also help the developer in court.
Farrell says that these kinds of legal battles before a development can break ground add cost to housing in California.
“There is so much of a history and practice of game playing by cities to do things that are close to illegal or outright illegal,” Farrell said. “One of the earliest stages of the process is just legal arguments back and forth over whether it even is the thing that the project applicants are trying to apply for… before anybody is able to actually construct housing and get people living in it.”
“This is not something that just affects market rate development. It’s also adding cost to every type of development, whatever the density, whatever the affordability, whatever the type of project, all of these rules and expense makes it difficult especially for affordable developers,” Farrell claimed.
YIMBY Law is insufficiently selective in the cases it accepts
Maybe N17 can name a little park on the property after our representative Josh Becker who proudly supported all the state laws to make this possible. Maybe the park can include naming a gas fire pit after Betsy Nash just for fun 🙂
This project does not meet the standard of the decency of good design, nor does it make any sense putting a massive sky scraper in the middle of a suburban area. This building is heinous, its garish, ugly, and is an architectural abomination. Meeting house requirements does not mean, lets build the biggest ugliest thing possible. I hope this project ends and something that has integrity, beauty and pairs realistically with the community is offered and approved.