State AG to Huntington Beach: You can’t block builder’s remedy  

The California Attorney General’s Office has told the City of Huntington Beach that a proposed local amendment that would block building applications filed under builder’s remedy is illegal.

Builder’s remedy is a decades-old California legal provision that, in certain situations, allows developers to bypass local zoning requirements. 

“California is facing a housing crisis of epic proportions,” Attorney General Rob Bonta said in a release. “With today’s letter, we’re putting [Huntington Beach] on notice.” 

The comments from Bonta represented a rare instance of the state’s top lawyer weighing in on builder’s remedy, a provision that remains largely untested by the courts. It also offered a potential preview of escalating tension between Sacramento and various cities as the development tactic continues to spread throughout California. 

The announcement on Monday came just a day before the Huntington Beach Planning Commission was scheduled to vote on the amendment, which seeks to invalidate housing construction filed under builder’s remedy on the grounds that the construction could adversely impact public safety and the environment. The state’s Housing and Community Development Department had already issued a similar warning to the city over the proposed ordinance last month.  

“Both letters,” a statement from the Attorney General’s Office said, “warn the City of Huntington Beach that adopting the proposed ordinance and restricting housing production under the Builder’s Remedy would violate the law.” 

It was unclear how Huntington Beach intended to respond to the state’s latest — and strongest — warning. A city representative said local officials, including the mayor, planned to address the issue on Tuesday. 

The spat comes as builder’s remedy, a provision that’s been around since 1990 but was all but forgotten until last fall, is once again asserting itself. The controversial provision first attracted widespread attention in October, after the firm WS Communities filed a flurry of applications in Santa Monica to build 4,500 housing units, using builder’s remedy to bypass local opposition. In recent weeks, even as the provision continues gaining traction in Southern California, the focus on it has shifted to the Bay Area, where dozens of cities, including Oakland, could soon be facing new applications. 

The provision, intended to spur housing production where it’s most needed, serves as a kind of penalty for cities — such as Huntington Beach — that fail to plan for enough new housing, and works by revoking local authority over project approvals as long as the developers propose projects with at least a 20 percent affordable component.  

Huntington Beach, like most of Southern California, faced an October 2021 deadline to gain state approval on its Housing Element, but the city is still out of compliance. Last August, according to HCD data, Huntington Beach submitted its most recent update draft, but the state rejected it weeks later. 

The emerging dispute between Bonta and Huntington Beach amounts to the latest flashpoint in a larger battle between the state, which for years has aggressively pushed a slate of pro-housing laws, and numerous cities, including wealthy enclaves like Woodside, that have fought them.