“Builder’s Remedy” Looms Large

More than 120 cities in Southern California are not in compliance with State housing element law, and many Northern California communities could soon join them if they miss their housing element approval deadline of Jan 31, 2023. Communities that are not in compliance are unable to access many State housing and transportation funds, but they also face a situation known as the “Builder’s Remedy.” This is a feature of the 1990 Housing Accountability Act which enables developers seeking to build new homes in jurisdictions that are not in compliance and have failed to meet their housing targets to move quickly, as long as 20% of the homes will be affordable, 100% are affordable to moderate-income households, or it is an emergency shelter. 

Without an approved housing element, cities lose zoning control, and development can move forward by-right anywhere in the city and at any height and density regardless of zoning or General Plan designation. The builder’s remedy is currently untested in court, and some cities have indicated they may seek legal action or may challenge any proposed developments under the California Environmental Quality Act (CEQA).

Cities have limited ability to deny developments through “Builder’s Remedy”. Projects can be denied only if they meet one of five circumstances, including violations of public health and safety standards, and lack of sufficient water and sewer capacity. Projects still must meet other requirements, including environmental laws. Check out this fact sheet from the Association of Bay Area Governments to learn more.

While the statute that includes the builder’s remedy—the Housing Accountability Act (HAA)—is over three decades old, it has not received much attention until recently. State legislators have passed legislation to provide more teeth to the law and both the California Department of Housing and Community Development and State Attorney General’s Office have teams that are enforcing compliance with the HAA, the housing element, and a host of other housing development-related laws.

The impact of the Builder’s Remedy is now being felt in Southern California, with developers proposing 16 new developments with more than 4,500 homes in Santa Monica and nearly 2,300 homes in Redondo Beach. In Northern California, Berkeley, Oakland, San Francisco, and San Jose are all expected to miss the January 31 deadline for housing element compliance and will soon face the prospect of new development submittals under the builder’s remedy.