“Builder’s Remedy” Becomes a Reality for Many Jurisdictions

The Bay Area’s 101 cities and nine counties had until January 31, 2023, to adopt legally compliant Housing Elements and receive certification from the California Department of Housing and Community Development (HCD) or be subject to what is known as the Builders Remedy. As of mid-February, only four Bay Area cities had received HCD sign-off on their Housing Elements. Southern California communities are also subject to the law and had an October 21, 2021, deadline for Housing Element approval, yet many remain out of compliance nearly 18 months later. To look up your city or county to determine compliance, check out this HCD database.

The Builder’s Remedy streamlines the process for housing development when a jurisdiction is not in compliance with Housing Element law, requiring that project submittals be approved when at least 20% of the units would be affordable to lower-income households, or 100% of the units would be available to moderate-income households. Read more about the Builder’s Remedy and the status of potential projects.

In February, 12 lawsuits were filed by YIMBY Law, the California Housing Defense Fund, and Californians for Homeownership (affiliated with the California Association of Realtors) against Bay Area communities that the advocates believe are not making an effort to comply with Housing Element Law, including Belvedere, Burlingame, Cupertino, Daly City, Fairfax, Martinez, Novato, Palo Alto, Pinole, Pleasant Hill, Richmond, and Santa Clara County. In January, Californians for Homeownership filed lawsuits against several Southern California communities, including Manhattan Beach, Beverly Hills, Bradbury, Claremont, Fullerton, La Habra Heights, La Mirada, Laguna Hills, South Pasadena, and Vernon.

It is expected that there will be legal challenges around the law, however, some builders are moving forward with proposals that take advantage of communities that have not complied with Housing Element Law. Two more publicized examples are in Santa Monica, where more than 4,000 units are proposed, and Los Altos Hills, where a single-family homeowner proposes a development with five homes and 15 townhomes on a 1.8-acre lot. Most experts have stated that, due to the affordability requirements, the Builder’s Remedy will work best in smaller, more affluent communities where rents that can be charged are higher.