Builder's Remedy Still Applies to 93 California Cities

More than 150 builder’s remedy projects have been filed in dozens of California cities that have failed to gain state approval for their eight-year plans to build new housing.

In 2022, California began enforcing a 1990 law that allows developers of projects with at least 20% affordable housing to bypass the local zoning approval process in cities and counties that don’t have state-certified “housing element” plans that mandate the number of new houses needed over the next eight years.

The state invoked builder’s remedy in Southern California beginning in 2022 and in Northern California in 2023. As of this month, 58 jurisdictions in Southern California and 35 in the Bay Area still do not state-approved housing plans, SiliconValley.com reported.

There are now 154 builder’s remedy applications seeking to build homes in 49 of these cities, including 53 projects in 19 Southern California cities, according to a report from YIMBY Law.

At least eight of these projects in Southern California are the subject of lawsuits, challenges that are beginning to produce court decisions that are early indications of whether builder’s remedy with withstand scrutiny from the legal system, CalMatters reported.

Three L.A. County Superior Court rulings are the first to emerge from litigation involving builder’s remedy projects.

In February, a judge denied a writ of mandate compelling the city of Redondo Beach to process an application to build 35 housing units at the former SEA Lab aquarium, finding that the project needed to comply with the California Coastal Act to comply for builder’s remedy.

At the same time, the judge rejected Redondo Beach’s claim that its housing plan was in compliance with state law at the time the project was filed.

In March, a Superior Court judge ordered the city of La Canada Flintridge to set aside its 2023 finding that a proposed 80-unit apartment project didn’t qualify for builder’s remedy. The judge ordered the city to begin processing the developer’s application.

In another ruling in March, a Superior Court judge rejected a motion by the city of Los Angeles to dismiss a lawsuit by developers who filed a plan to build a 40-unit apartment building just five days before the state housing department certified L.A. housing element plan.

The city is arguing that its plan was “substantially compliant” before the developer’s plans were filed, because the state eventually approved it. The judge ruled that a city can’t “self-certify” or “backdate its housing element compliance to circumvent builder’s remedy.”

Builder’s remedy was intended by the state to be a tool to bring more housing to cities, but it also is being invoked by developers to speed housing projects in sparsely populated or unincorporated areas of counties without approved housing mandates.

In Northern California, some developers have been invoking builder’s remedy to put housing projects on farmland in Santa Clara County and vineyards in Sonoma County, according to a report in the San Jose Mercury News.

In Morgan Hill, a developer has filed an application to build 374 single-family homes on a cherry and peach orchard. In Benicia, a developer has proposed to build 1,080 houses on a cow pasture.