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The soaring high-rise development proposed at the former Sunset Magazine headquarters in Menlo Park is sparking concern among citizens and city officials alike, with an expert saying the monolithic building project could end up in court.
The dense project proposed by N17 Development features four buildings, two of them housing residential units, to replace the single-story former Sunset Magazine campus at 80 Willow Road, near the Palo Alto border. The tallest building would rise 326 feet, taller than the 305-foot Statue of Liberty and only 4 feet below most modern definitions of a skyscraper.
“My jaw hit the floor when I learned about it and I thought it was a typo,” Mayor Jen Wolosin said. “I understand the concerns in the community and I’m one of those concerned residents.”
The building’s preapplication was filed under SB 330, commonly known as the builder’s remedy law. Builder’s remedy goes into effect when a city has not adopted a compliant housing element, or a document defining opportunity sites to build housing and methods to achieve state-mandated housing goals.
This is orders of magnitude beyond what is reasonable.
Jen Wolosin, Menlo Park mayor
According to Christopher Elmendorf, a professor at UC Davis specializing in property and land-use law, builder’s remedy limits the city’s authority to deny an affordable housing project or hamper a development after a preapplication is submitted. Any project that has at least 20% of its units designated affordable for lower-income households, or 100% of units designated for moderate-income households, cannot be restricted by zoning or the city’s general plan.
While the preapplication submitted to Menlo Park doesn’t specify how many units will be affordable and at what income level, the proposal meets other requirements of builder’s remedy. The Housing Accountability Act says that mixed-use developments with at least two-thirds of the square footage designated for residential use can fall under builder’s remedy. Despite including retail, hotel rooms, offices and a 226-foot-tall building for laboratories and research, N17’s project has 148,400 square feet of non-residential space and approximately 1,232,100 square feet of residential area, well over two-thirds of the project.
“The proposal is wildly out of scale with what our community has been planning for housing growth and we’ve been working very hard on the housing element to distribute housing thoughtfully throughout the city,” Wolosin said.
Still, Menlo Park has some paths for objecting to the preapplication for 80 Willow Road. According to Elmendorf, builder’s remedy projects are still subject to the California Environmental Quality Act (CEQA) and health and safety standards. If the project is found infeasible in either of these categories, it is still possible to deny the proposal.
One other path that some cities have taken is to go through the court system. According to Elmendorf, several cities have gone to court to argue that despite not being approved by the California Department of Housing and Community Development (HCD), the city’s housing element was, in fact, compliant.
“HCD has taken the position, which I think is wrong, legally, that a city’s housing element is not compliant until the city receives the letter from HCD saying that housing element’s compliant,” Elmendorf said. “I think a housing element is compliant or not from the moment it was last adopted or amended.”
Despite voting to resubmit a modified housing element at a June 27 City Council meeting, members elected to not adopt the latest version. The council most recently adopted a housing element at a Jan. 31 meeting, just making the state’s Jan. 31 deadline.
“We’re not asking for re-adoption at this time,” city staff said at the June 27 meeting.
Wolosin emphasized that Menlo Park had not missed any deadlines, and had submitted all required documents on time to HCD. Builder’s remedy information has been added to an FAQ about the housing element on the city’s website at menlopark.gov/housingelement.
“This cycle of the housing element is unlike any previous cycle,” Wolosin said. “The state has kind of ramped up its expectations and enforcement arm, and most cities are struggling with their housing element. I feel like we put forth a good-faith effort and I’m hoping it’ll be met favorably by the state.”
Cities around the Bay Area have been struggling to get their housing elements approved, with Mountain View and Redwood City the only ones on the Midpeninsula with compliant and approved housing elements. Portola Valley, Palo Alto, Woodside and Atherton are all working to address problems on rejected housing elements.
According to Elmendorf, Menlo Park officials would have to argue that even though HCD denied certification of the housing element, the city was actually in compliance as of the last date of adoption.
Elmendorf said that precedent on an argument like the one Menlo Park may have to make is a “mixed bag.” He cited a recent case in Clovis where the state Court of Appeals determined that courts should defer to the judgment of HCD about whether a housing element is compliant, but some older precedents say that if the city checked all the boxes, its housing element is legally compliant despite HCD’s determination.
On Aug. 7, YIMBY Law filed a lawsuit against the city of Redondo Beach over its rejection of a builder’s remedy project of 2,700 homes.
There are three possibilities if Menlo Park takes the project to court, Elmendorf says. If the city checked the boxes of the housing element, it can win, but courts could also defer to HCD or have “a battle of experts” in which the court reviews the housing element.
Wolosin said that the city of Menlo Park will hold a community forum once officials have more information to work with.
“I understand this is bringing up a lot of anxiety in residents, for good reason,” she said. “It’s a shocking proposal, but I think there’s a lot left that we don’t know yet.”
Another possibility for the gargantuan development is simple, Elmendorf said: compromise.
“Even if the developer has the right to do something, you know, there may be very good reasons for them to reach an accommodation with the city,” he said.
The project is still in the preapplication stages, but in the meantime, Menlo Park continues to work with HCD on the most recently submitted housing element, which has not yet been approved or denied.
“The council’s been committed to getting a really good housing element together,” Wolosin said. “There’s a community consensus that this is not reasonable … to me this is orders of magnitude beyond what is reasonable.”
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Surely, we all know what is going on here, right? N17 wants to build a 20 story building, So they submit plans for a 30 story building, then “compromise” by building a 20 story building.
My heart sinks when I see the words “compromise”. My fear is that the developer suggested a monstrosity, so that when they “compromise” to ONLY say 10 stories…that seems reasonable compared to 30. Even that would be massively and horribly impactful at the Willow/Middlefield intersection. We don’t want anything that makes it even more difficult to navigate our streets, especially during commute hours. Please look VERY carefully at the impacts to our infrastructure that was never meant to support this kind of development.
As a resident of East Palo Alto near San Francisquito Creek, I am concerned about the flood risks of building such a large building right next to the creek, with the need for deep pilings, etc. I suspect that there will need to be serious environmental analysis of the proposed development and that CEQA considerations would stop it.
Considering this sad pathetic joke of a development is funded by a Russian oligarch, with Putin ties, that should be reason enough to reject this nonsense. Bedside the fact it has no business being in a neighborhood. Those in favor must have financial incentives and should be ashamed for wasting the city’s precious time and resources.
https://padailypost.com/2023/07/27/owner-of-sunset-campus-who-has-plans-for-massive-towers-is-the-son-of-putins-former-energy-minister/
Voicing your concerns and opinions about this sad affair, if you are not in favor, will for some reason really upset some in the community. Very telling. We already have 3 density developments in the works, belle haven has seen the most development and least improvements, so that’s nice. I like all those bike safety improvements that I’ve seen. Well, not over here, but western Menlo seems to be winning again. We have Thomas James over building the neighborhood with exceptions no other home owner using a regular contractor can receive, so as I see it, rules can be amended. We don’t need this lousy “development”. If we do, please put it where will fit, like in Sandhill.
The easiest way to stop unplanned developments like this (under the Builders Remedy) is to drive the city council to produce a passable Housing Element. Not that hard, but will require some rezoning and greater density outside of Belle Haven. Time for small compromises to avoid developers making the decisions for us.
Many of you have missed the point. These kinds of developments are EXACTLY what Sacramento elected officials want.
They believe that the more homes we build in California, the more affordable they will be. And, to a certain extent, they are correct. But not all cities are created equal. Modesto and Fresno are quite different from congested Menlo Park, Atherton, Portola Valley and Woodside where residential property prices are among the highest in the world and infrastructure (mass transit, schools, roads, jobs, etc.) are already stressed.
And even if housing prices could be magically cut IN HALF – obviously, an unrealistic suggestion – that won’t make homes “affordable” for the people these new mandates are intended to help. If a Menlo Park home that today sells for a crazy $4 or $5 million will only sell for $2 or $3 million in the future. Do you think that someone making $75,000 a year will be able to afford a $2 or $3 million home? Not a chance. None of this going to be “affordable.”
This mandate to produce more housing stock is simply a gift to developers who are the largest contributors to political campaigns so they can more easily build more projects – and NOT more “affordable” homes. You’ll eventually figure it out when they want to build a 30 story condo on your street. (And yes, as some have suggested, the developer will eventually settle for a 20 story building. Yippee.)
As a resident of Belle Haven – I can’t say I look forward the traffic that will come with the large apartment buildings being built here (more particularly, the nearby areas formerly used for light industry and offices). However – it makes a lot more sense to tall buildings here than where Sunset was located (and I think this proposed tower is taller than anything built on this side). That has terrible road access for that scale of building. If the city has to accommodate more, figure out where the infrastructure can support it; or be modified to support. This “builder’s remedy” approach seems to be “do what we say, or we will allow developers to ruin your city”.
“… builder’s remedy projects are still subject to the California Environmental Quality Act (CEQA) … If the project is found infeasible in either of these categories, it is still possible to deny the proposal.”
This is the way. Unfortunately, the article (or expert) uses non-standard CEQA language.
CEQA projects may contain “significant, unmitigated” impacts.
If so, to approve the project, a city must adopt a formal finding, a so-called “finding of over-riding consideration”. In the finding, council must reason that the benefits of the project outweigh the unmitigated impacts and formally list those benefits, and make that declaration and vote on it.
The article doesn’t use that language and protocol, but it could be the case that CEQA “significant, unmitigated” impacts are a valid “basis” to find the project “infeasible” (article language) and trigger council’s discretionary authority to deny the project.
It’s hard for me to imagine that any law or court would enable CEQA but deny council its CEQA-granted discretionary authority to deny them, i.e. that law or courts could FORCE council to make and adopt a finding of over-riding considerations. What is the point of CEQA if the impacts don’t matter and council may not address them?
And of course the project is going to generate many significant, unmitigated impacts.
BTW, I think the more troubling answer is that nobody really knows because the builders remedy is an old, rarely used law now being put to frequent use and the historical case law is not very well developed and not informative. That puts cities at risk even if they might prevail in litigation.
Litigation uncertainty might prompt cities to negotiate.
PH –
Those same politicians in Sacramento think California’s CEQA requirements are unnecessarily impeding their desire to build, build, build. Eliminating CEQA is next on their “to do” list.
https://calmatters.org/commentary/2023/02/environmental-ceqa-law-reform/
I would have some hope that our council would use CEQA to kill this project, but the progressive majority on the council thinks we need to build more housing to make it more affordable. Paying NO attention to the math that makes it impossible to build “affordable” housing here. The cost of land and construction are too high to build anything that is remotely affordable for the people it is supposed to be for. Even the density of a 30 story building will not provide it due to the cost of construction for something that large. What it will end up being is less expensive housing, not “affordable”, just less expensive, and not significantly so.
Sorry guys,
While I believe that a 30 story, or even a 10 story building is wrong for the Sunset location, I also believe that:
* Menlo Park could have delivered a far better Housing Element, thus avoiding this whole Builders Remedy distraction, if the Council had done a better job of spreading the density.
* The threat of the Builders Remedy should be enough for the city to rework the Housing Element to something more acceptable. That’s where all the carping and whining should be directed.
* I’ve go no confidence in a CEQA that keeps UC Berkeley from building more dorms on existing land due to “noise pollution from students. CEQA has been twisted and contorted well past its original environmental conception.
* I can’t see a way other than greater density (though not 30 stories) for our kids to live here in the coming future. Cities can use 80% of their residential land for R-1 and expect affordability.
@Kevin ” I’ve go[t] no confidence in a CEQA that keeps UC Berkeley from building more dorms on existing land due to “noise pollution from students.”
UC Berkeley lost 2 successive CEQA cases to neighborhood groups and the city.
In “The Enrollment Case”, an appeals court found that increasing enrollment by 6600 students above the number studied and mitigated in the 2005 program EIR for UCB’s 2020 Long Range Plan required further (supplemental) environmental review. UCB had performed none, and said nothing to the community about the increases until they were discovered more than a decade later.
In “The Upper Hearst Case”, which combined review of the 6600 along with other enrollment increases and building, UCB’s SEIR claimed that an increase of 11,000 students (including the 6600) would have no effects on the environment generally, nor on the City of Berkeley.
A judge found the SEIR to be deficient regarding 1.) housing, displacement, and population, 2.) demand for public services, 3.) Noise and aesthetic impacts, and 4.) treatment of alternatives.
Unlike Stanford University whose EIRs are performed and certified by the Santa Clara County, UCB’s EIRs are performed and certified by its own Board of Regents. It monitors itself.
If you can imagine Stanford increasing enrollment by 11,000 students with facilities and no impacts on Palo Alto and Menlo Park then you can believe UCB’s EIRs.
The COURT: “Ultimately, CEQA allows an agency to approve a project, even if the project will cause significant environmental harm, if the agency discloses the harm and makes required findings.”
It’s child’s play to prepare legal EIRs. Menlo Park and Santa Clara County do it all the time.
Just disclose the harm and make the findings.
It’s a national disgrace for UCB not to be able to do what Menlo Park routinely does and to blame UCB’s abuse on the law itself.
Apparently telling the truth is so hard that we need to neuter a law that requires it.
So true about it being child’s play to create a legal EIR. How many EIRs have we seen in our area that list the problems and label them unmitigatable. In truth there is no such thing as unmitigatable. But the word has taken on a totally different meaning in the game of EIR writing — you admitted the development will cause severe problems, now you’re off the hook for mitigating the problems. Twisted.
All of a sudden Mayor Wolosin is shocked that a development out of character for Menlo Park when it’s in her district. She has voted for outsized developments in other districts, backing the YIMBY coalition. And now that they target her district she’s outraged? Come on. It’s awful to see that the city council doesn’t even have the integrity to admit when they’re wrong.
Menlo Lifestyle:
It’s because they want to “save the world” on other people’s backs. They don’t care how stupid their initiatives are and how they negatively affect people. Until it directly affects them.
Menlo voter, the city has been far too busy accommodating the other end of town. Just look around. City won’t get back to you, so don’t bother. I’m sure Thomas James will gladly destroy the sunset site with the city’s quick approval, if given the chance. But by all means let’s keep entertaining a development funded by a Russian with Putin ties.
@Menlo Lifestyle, @AZ,
You guys have a selective memory. Mayor Wolosin was also the one who warned us that the current version of the Housing Element would likely lead us to the ugliness that is the Builders Remedy. If I were her, I would be trumpeting “I told you so” to the all the clowns who sought to protect their fiefdoms from higher density and a more equitable Housing Element that would have passed muster with the state.
But I’m glad that we have the “Builders Remedy” Sword of Damocles hanging over us, until we get the Housing Element right.
Kevin:
No matter what we do with the housing element it will NEVER provide the affordable housing it is supposed to. The math simply doesn’t work in this area. Land and construction costs are far too high. The only way to make it happen is with government housing which is illegal in this state. The “builders’ remedy” will only remedy empty space in developers’ bank accounts. It will do nothing for providing affordable housing, neither will the housing element being done the way the progressives in the state want it.
@Menlo Voter,
Sorry, but the numbers do pencil out when:
1) cities require BMR housing in each an every major new development. We’re seeing a fair amount of this housing going up today, thanks to the statues and in-kind funds.
2) Developers are able to leverage density bonuses and height / coverage variances. The spreadsheet economics are simple.
The only barriers are tired NIMBY status quo tropes like yours.
“No matter what we do with the housing element it will NEVER provide the affordable housing it is supposed to. The math simply doesn’t work in this area.”
vs
“cities require BMR housing in each an every major new development. ”
BMR housing is NOT affordable housing it is simply anything that is even a little bit less expensive than the market rate.
Peter has it right. Manipulating the BMR is lousy. You have to make $250k and qualify. That’s not serving those truly in need. That’s working the system for an out of town developer who just want to rack in as much cash and split. That’s not serving our community in a positive way. Time to cut the crap and get busy with reality.
Kevin:
as Peter notes, there is a difference between BMR and affordable housing. BMR in this area isn’t remotely “affordable”. It just costs less than market rate. People making less than $100k a year don’t have a chance of getting into this area’s BMR housing. Because, affordable housing doesn’t pencil in this area. Land and construction costs are too high.
A.Z.
You are right. And the reality is that in this area if “affordable” housing is to be built that is actually affordable, it will require government subsidies. Those are illegal under the California constitution. So, if the progressives really want to do something about it, they need to change the constitution. You want to bet they don’t?
Menlo Park’s “inclusionary” BMR ordinance is a product of the 1990 generation of people now being called NIMBY’s by Kevin. It is not a recent policy innovation of either the Newsom administration or the Wolosin council.
Jen Wolosin’s Vintage Oaks neighborhood contains deed-restricted units produced by that ordinance decades before she moved in or took office.
If that ordinance is now being cited as the most successful policy for producing “affordable” units, then shame on today’s leaders for failing to produce any effective new ideas, and shame on Kevin for misappropriating the credit.
BTW, government can “subsidize” housing. It just can’t build it. Menlo Park used RDA funds in Belle Haven to acquire land then sold it to a chosen developer to build affordable units there. Most cities collect in-lieu BMR funds and affordable housing impact fees that are used to subsidize affordable housing. Palo Alto created a separate NGO to build housing and channels its funds to that NGO.
You all voted for this. Now I read that Newsom and Berman don’t like this particular plan to build in Menlo Park. I guess they want to pick and choose who gets to destroy the environment, expand the global warming crisis, and use Russian Oligarchs funds to do it, Only “nice” developers can use the more correctly named “developers remedy”? Maybe next time vote for a liberal instead of a bunch of Regan Republicans with Ds after their name. Have any of you noticed a drop in homelessness under Newsom either is San Francisco or across the state? Did I miss it? Or are we being subjugated to Gas Lighting by trickle down housing proponents?
Until we have some liberal housing policies instead of “developers remedies” you should probably plan on sitting in traffic spewing smog until the fires burn you out.
Meg:
I guess you’re ok if they build some massive building up in Portola Valley, right?
No it’s not ok to build massive buildings in any family neighborhood, or in neighborhoods prone to flooding, or at the urban wildlife interface. Which is why I no longer vote for Newsom or Berman and never will again. Trump voters believe Trump lies and we are shocked. But when Newsom lies we close our eyes, cover our ears, and sing nanana. There must be at least one competent honest Democrat in California. If so for God sakes, please let them run and win. Maybe we can even find someone willing to take constructive action on drugs, crime, and homelessness instead of relying on developers and the Feds to do their job. Sadly, I suspect that most of California will keep naivly voting for sellout politicians who are not interested in representing their constiuents or doing the hard work needed to support the least well off among us. Again, to you who voted for this – ooops.
Tired of all the petty curmudgeons who say BMR housing doesn’t happen. Of course it does. Plenty of action and possibilities outside your NIMBY universe (see the links below). There may not be enough to meet demand, and you can keep pretending that it won’t be helpful, but it’s far better than your status-quo approach.
https://sfyimby.com
https://sfyimby.com/neighborhoods/menlo-park
Kevin:
no one said BMR housing doesn’t happen. In fact, I said it did. The problem is in this area, even if it’s BMR, it’s not affordable. You don’t seem to understand that concept. To afford a BMR in this area can require household income of $250,000 and UP. You think your housekeepers, gardeners, baristas, etc. can afford that? Hint: they CAN’T.