Mallard Pointe developers introducing 70-unit density-bonus project

Under a new application that was to be filed this week by developers, the Mallard Pointe complex in Belvedere would have 70 units — up from the existing 22 and the 40 in the current proposal — with 55 units of apartments in building A, four townhouses in building B, duplexes on lots 1 and 8, and single-family homes on lots 2-7. (Provided by Thompson Dorfman Partners LLC)

Editor’s note — This article won first place in the California News Publishers Association’s 2025 California Journalism Awards for best writing.

By FRANCISCO MARTINEZ and KEVIN HESSEL Developers for the controversial Mallard Pointe project were expected to submit a new application this week that nearly doubles the number of proposed units to 70, including a four-story, 55-unit apartment complex plus townhomes, duplexes and single-family homes.

In a Jan. 12 interview, Mill Valley-based developer Bruce Dorfman of Thompson Dorfman Partners said he intends to use the so-called builder’s remedy if necessary, asserting that because Belvedere does not yet have a state-certified 2023-2031 housing element, local zoning and the general plan are not enforceable and the city cannot use them to deny a project with at least 20% low-income housing.

The developer’s attorney, Riley Hurd, confirmed the project would have 14 affordable units to meet that standard.

Dorfman, a partner in the 22-unit lagoon-side site as Mallard Pointe 1951 LLC, said he expected to submit the new application on Jan. 16, after The Ark’s press deadline, because City Hall is closed Fridays and observed the Martin Luther King Jr. holiday on Jan. 15.

The filing will set the stage for the owners to make good on a promise to increase density to ensure the project remains profitable if the current 40-unit redevelopment plan is delayed by costly further environmental review.

That review requirement is in the hands of the City Council.

At the owners’ request, councilmembers are scheduled to hold a Jan. 22 appeal hearing over the Planning Commission’s unanimous Nov. 14 decision that the project does not qualify for an “urban infill” exemption under the California Environmental Quality Act. The commission’s ruling to require further study bucked the recommendation of City Hall staff on the advice of its planning director, city attorney, two consulting attorneys and its environmental consultant.

The developers say the existing plan was specifically designed to qualify but that the city charged them $100,000 and took 1½ years to fully analyze environmental requirements, only for that analysis to confirm the project should be exempted.

“This upsized project was necessitated only by the city’s ‘by any means necessary’ approach to preventing the original project from moving forward, including abuse of the (environmental act) process and other delay tactics,” Hurd said. “The applicant is prepared to do what it takes to see this new application forward to a decision, and the law is unequivocal that the project must be approved.”

Dorfman added that if the City Council upholds the appeal and exempts the 40-unit version from further environmental review, “then we’ll pivot to the original application.”

The new proposal

The 2.84-acre site, located between the lagoon and City Hall, includes Mallard Road, a private U-shaped street that intersects with Community Road across from City Hall on the south end and Community Park on the north. Its 22 units include eight waterfront duplexes, along with a ninth duplex and a fourplex on the residential island along Community Road, all of which would be demolished.

The 40-unit plan already under review would subdivide the land into individual lots and replace the housing with 17 new units of waterfront duplexes, single-family homes and an accessory dwelling unit. The residential island would include 23 more units, either in an apartment complex or a recently proposed alternative of fourplexes and a triplex.

Dorfman said the existing application is a community-based solution for the aging property after the developer held dozens of meetings with residents in 2020, then participated in a joint public study session with the City Council and Planning Commission in February 2021. Those meetings led to additional changes before the preliminary application was filed that June.

However, the plan faces significant vocal opposition, particularly from residents who banded together to form Belvedere Residents for Intelligent Growth, or Brig. The group disputes many of the legal underpinnings of the application while asserting the project is out of character with the neighborhood, will displace current tenants, jam up traffic and challenge the water supply.

Dorfman said the obstacles have forced a market-based solution.

The Ark was unable to review the full application by press time, but Dorfman described the project while providing preliminary renderings and a one-sheet summary of the interior spaces.

Those show the 70-unit project would shorten Mallard Road to include only a gated entrance at the north end. The south entrance would be converted to a driveway that provides access to the property at 500 San Rafael Ave. but otherwise leads directly into an 81-space ground-level parking garage serving the four-story 55-unit complex, which would rise to 56 feet at the top of the elevator shaft. The complex would include 23 one-bedroom units of 700 square feet; 22 two-bed units of 1,100 square feet; and 10 three-bed, two-bath units of 1,600 square feet.

By eliminating Mallard Road behind the apartments, the complex would extend to the waterfront, providing shared dock, lawn and lagoon access not included in previous designs, as well as a shared pet area. A large shared courtyard leading to the lagoon would include a barbecue area, pergola and outdoor seating. Units would retain rooftop access, while there would also be a fitness room, club room and storage for 76 bikes.

On the same lot, a second building would provide four units of three-story townhouses with ground-level three-car garages, second-floor living areas and top-floor bedrooms. All would be 1,440-square-foot units with two bedrooms and 2½ baths, plus three spots each for bicycles. Paved walkways to the shore would allow the townhomes to share lagoon access with the apartments.

The townhomes, duplexes and single-family homes, however, would be accessible only from Mallard Road to the north. A crosswalk to the park would be added at the Community Road intersection to improve pedestrian safety.

Dorfman said the lagoon lots are “pretty much identical” to what is already proposed. Waterfront duplexes would be built at each end of the shortened road. The duplex closest to Community Road would have 1,600-square-foot two-bedroom, 2½-bath units, each with one-car garages. The duplex at the inner end of Mallard Road would have a 1,400-square-foot, two-bedroom, 2½-bathroom unit with a one-car garage, while the other unit would be 2,000 square feet with three bedrooms, 2½ baths and a two-car garage.

In between would be six single-family homes, five of which would have four bedrooms and 3½ baths; three would be 4,250 square feet with three-car garages and two would be 3,200 square feet with two-car garages.

The sixth home — at the point — would be 4,500 square feet with five bedrooms, 5½ bathrooms and an accessory dwelling unit with a two-car garage.

Each building would sit on its own subdivided lot.

The garage parking and an additional 16 spaces of street parking combine for 129 total spaces, or 1.9 per unit. Electric charging is planned for all lower-density parking spots and “a lot of parking spaces” at the apartment complex, Dorfman said. With 32 bike spots at the single-family homes and duplexes, plus 10 more short-term spaces, the project will have a total of 130 bike spaces.

Dorfman said the new apartments and townhomes would likely be built concurrently over two to three years, while the single-family lots would still be sold separately. He added that the construction of those homes would depend on who buys the lot and when.

Dorfman also said the development team will not change the relocation benefits for existing tenants, that the benefits package will be honored “irrespective of which project gets approved” and that the same goes for the commitment to replace the lagoon bulkheads.

Leveraging the law

By submitting the 70-unit application under Housing Crisis of 2019 rules, or Senate Bill 330, the developer intends to vest the plans under all current local ordinances, policies and standards before the city adopts the latest version of its revised 2023-2031 housing element and completes rezoning on Jan. 22 — and before state housing officials eventually certify the element as being “substantially compliant” with state law.

“This is a belt-and-suspenders approach that ensures the project absolutely, positively, must be approved pursuant to state law because of both the builder’s remedy and the state density bonus,” Hurd said by email.

The builder’s remedy, created by a provision of the Housing Accountability Act, acts as a penalty for jurisdictions without a substantially compliant element. A qualified project remains vested even after a city receives its certification from the California Department of Housing and Community Development.

In the Bay Area, a compliant housing element was required by Jan. 31, 2023. But like many other jurisdictions across the state, Belvedere claims it can “self-certify” its own element while it awaits formal state approval, insulating itself from the builder’s remedy.

The city is now aiming to beat its Jan. 31, 2024, state deadline to complete rezoning to bolster a legal argument that its housing plans are substantially compliant while it works in good faith toward certification.

The state housing agency says only it has the authority to certify, an opinion shared by Hurd, the attorney general and increasingly the courts. A recent ruling against Clovis and La Cañada Flintridge have respectively found that the court wouldn’t uphold an inadequate housing element even if certified, while a refusal to accept a builder’s-remedy application constitutes a denial in potential violation of the accountability act, opening up a city to lawsuits, payment of all court and attorney fees and court approval of an application.

Those rulings could mean Belvedere has been fully exposed to the remedy for the past year and will remain so for months to come. Once submitted, Sacramento will have 60 days to review the latest revision, but second attempts are rarely certified and need more work. Just 60 of 109 Bay Area jurisdictions had state-approved elements at The Ark’s Jan. 15 press time.

For Hurd, the builder’s remedy is the backup plan, as the 70-unit project — like the existing 40-unit one — was also designed to comply with the state density-bonus law.

Under the bonus law, projects with affordable housing can receive up to 50% more density than local zoning allows.

Because the new 70-unit application now includes replacing a portion of Mallard Road with housing, Dorfman said the base zoning at 20 acres per unit allows for 50 units. With 14 of those reserved for low-income tenants, that creates 28% low-income housing under density-bonus calculations, triggering a 50% bonus, allowing for a project of up to 75 units without using the builder’s remedy.

Hurd noted the density bonus is stackable and that by making 15% of the units moderate-income housing, the project could exceed 100 units.

The bonus law also requires jurisdictions waive any local rules that would prevent full build-out, plus at least one incentive, called a concession, that allows a developer to reduce project costs; a project with a 50% bonus gets two concessions.

Whether using the bonus law or builder’s remedy, projects are still subject to the California Environmental Quality Act.

Dorfman said most of the analysis was already completed when the city determined there were “no significant and unmitigable” impacts for the 40-unit project and that it wasn’t “too far of a stretch” that the impacts of a 70-unit project would be similar.

“There is no baseline for making any sort of changes to it,” Dorfman said. “So, ultimately, the city is going to be in a situation where they have to approve this application once we complete the (environmental) analysis.”

While he said the owners “can continue to work with the Planning Commission and the community on the 40-unit project,” that depends on whether the project is exempt from further environmental review.

“Frankly, it ultimately becomes a city decision.”

Reach Tiburon reporter Francisco Martinez at 415-944-4634 and Executive Editor Kevin Hessel at 415-435-2652.