Santa Monica council member: Let’s work together on builder’s remedy

Phil Brock’s comments come as city explores legal options

Santa Monica Council member Phil Brock (, Getty)
Santa Monica Council member Phil Brock (, Getty)

Towards the end of October, the City of Santa Monica seemed to be signaling a looming legal battle triggered by builder’s remedy.

Just a couple weeks earlier, at a council meeting, city officials had been bamboozled by the now-famous revelation that a developer had filed a slew of potentially city-altering project applications. By the following meeting, on October 25, hundreds of outraged Santa Monicans had weighed in — some calling for the heads of their representatives — and three council members publicly urged the city attorney to hire an outside legal firm.

While the city did in fact receive an outside opinion to help it consider its legal recourse against the builder’s remedy projects, it has yet to actually hire a firm, council member Phil Brock informed TRD last week. And in an extended interview, Brock himself, who is a vocal opponent of at least some of the proposed projects and one of the three council members who urged the hiring of outside counsel, struck a notably more conciliatory tone.

“We’re not preparing for a fight,” Brock said. “We’re trying to find out what is legally permissible — what rights do we have, [and] what rights do the developers have. And we hope we figure out a way to work out something together.”

The council member also emphasized that the city’s builder’s remedy drama will unfold over a relatively long timeline. Under state law, developers only have to submit a basic, preliminary project application when invoking the strategy, a measure that theoretically adds heft to the legal provision by making it easier for developers to actually use.

But within six months, developers must still follow up with more detailed applications — meaning that the real legal battle over Santa Monica’s projects might not play out until next year.

“Look, there are a lot of questions,” Brock said. “To some extent, until they actually start submitting [the full applications] there’s nothing for us to do that would not be premature … Are you going to start a battle when maybe there’s no battle needed?”

Scott Walter, the CEO of WS Communities, the development firm behind the controversial Santa Monica applications, said that the firm was moving ahead with the full applications.

“We haven’t heard from them,” Walter said of the Santa Monica council. “As we always have, we’re willing to be cooperative and be collaborative, but we also feel that what we’ve submitted is legally allowed.”

As a single council member, Brock does not wield full control over the city’s response. The body is made up of seven members, including the mayor. Though it tilts heavily Democratic — five, including Brock, identify as Democrats, and none identify as Republicans — members’ opinions often differ considerably on affordable housing and density issues.

“If I don’t sound as upset, it’s because these [builder’s remedy projects] have more affordable housing than anything we could do,” Mayor Sue Himmelrich, who has often styled herself as an affordable housing advocate, said last month, the Santa Monica Lookout reported. “If you don’t mind affordable housing, it’s not as horrible as they say.”

But when the wave of applications was first revealed it was Brock who emerged as perhaps the council’s most vocal critic builder’s remedy critic. “I was blindsided when I heard about it,” he said. So the suggestion of potential collaboration nevertheless serves as a strong indicator of the more strategic approach the city is likely to take as it considers legal options.

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Brock’s comments also seem to represent a tonal shift. At the city council meeting on October 25, the first since the highly polarizing project applications came to light, Brock and two other council members added an agenda item expressly urging the city attorney to hire outside counsel for a possible legal fight against the projects.

That prompted a somewhat defensive response from the city attorney, who clarified that Santa Monica had already been in discussions with an outside firm and claimed the council and staff could not have done anything to change where things are today.

At the time, the city attorney also hinted at a potential legal strategy — a plan to contest the projects based on a technical argument that the correct cutoff date for builder’s remedy applications should be earlier than the widely understood date of October 14, when the state’s Housing and Community Development Authority certified Santa Monica’s updated plan — although at least one legal expert has shot down that argument.

“Friends, the statute says ‘adopted,’ not ‘drafted,’” tweeted Chris Elmendorf, a law professor at UC Davis and a noted builder’s remedy authority. He added that the position was “silly.”

At a subsequent council meeting, Brock and the two other council members agreed to drop the agenda item urging an outside legal firm. It was unnecessary, Brock said in the recent interview, because the outside consultations were already underway.

The city’s 16 proposed builder’s remedy projects, which came mostly from WS Communities, a firm run by Walter and Neil Shekhter, have generated so much controversy largely because of their scale. The applications totalled around 5,000 units, representing a potential 10 percent addition to the city’s total housing stock.

While some of the smaller projects may face little to no city opposition, others — particularly WSC’s plan for a 15-story, 2,400-unit apartment complex on Nebraska Avenue — are more likely to be the subject of negotiations or legal battles. In a recent interview, Dave Rand, an attorney representing WSC on the projects, also said he was expecting a degree of opposition.

“My hope is that the city is going to be selective,” the lawyer said. “But you have council members who are about slow growth. And they’re putting a lot of pressure on their staff to push back on these projects, and so this is not going to be a cakewalk at all. It’s going to be a fight.”

Although California’s builder’s remedy provision is part of a state law, the Housing Accountability Act, that dates back to 1990, the provision had never actually been invoked by developers until this year, a scenario that transformed Santa Monica into a potentially precedent-setting test case even as the larger frenzy around the controversial strategy is likely to soon shift north to the San Francisco Bay Area.

Brock declined to name the law firm the city consulted, but added that outside opinions, including from a law professor, have suggested the city does have potential legal recourse.

“I think we’re looking at all the arguments,” Brock added. “And yeah, while we were all shocked by this — or at least I was — then you try and make the best of it. You don’t stand up automatically and say, ‘Dammit, we’re suing!’ I think that’s a crappy way to run a city.”

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