Defying state warning, Huntington Beach advances builder’s remedy ban   

The Huntington Beach Planning Commission voted on Tuesday evening to advance a pending law to ban builder’s remedy applications, just a day after city officials received a harsh warning from the California Attorney General’s Office about the law.

The vote effectively raises the stakes in an escalating battle between the Orange County beach town and Sacramento. 

“We’re drawing a line in the sand,” said Michael Gates, the Huntington Beach city attorney. “It just sends a clear message to developers to not even try.”

Ban state law?

The city ordinance intends to establish what would be California’s first ban on applications filed under builder’s remedy, the decades-old state legal provision that has recently gained traction because it allows developers to bypass local zoning in cities that are failing to meet state mandated-housing plan deadlines. 

The Huntington Beach measure amounts to a direct challenge to the Housing Accountability Act, the state law underpinning builder’s remedy, and asserts that any builder’s remedy applications filed in Huntington Beach will be invalid, citing potential environmental and health impacts from zoning noncompliant projects. 

Huntington Beach has not received any builder’s remedy applications but is currently subject to the provision because the city has not gained state compliance on its Housing Element after facing an October 2021 deadline for a revision. 

The local ordinance that defies state law passed the Planning Commission in a 4-2 vote, a Huntington Beach representative confirmed. The measure will now return to the City Council for adoption and is on track to become law around April 1. 

The effort has moved ahead even as the city continues negotiating with the state — in good faith, Huntington Beach officials maintain — over the rejected Housing Element update that prompted the ordinance in the first place.  

“We’re not going to sit idly by while HCD negotiates with us, or takes 60 to 90 days,” Casey McKeon, the council member who brought the measure, said on Tuesday. “We’re not going to sit idly by and allow builder’s remedy projects to come to the city.” 

Even before it goes active, the city’s preemptive builder’s remedy ban has drawn rebukes from both HCD, the state agency responsible for enforcing Housing Element law, and the California attorney general, with detailed rebuttals to the city’s legal claims. 

On Monday, the state’s top lawyer issued another warning to Huntington Beach strongly condemning the pending ordinance. 

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

“Two-prong process”

Huntington Beach officials maintain they’re prepared for a long legal fight. On Tuesday, ahead of the Planning Commission vote, Gates, McKeon and tMayor Tony Strickland held a press conference where they vigorously defended the ordinance and framed builder’s remedy and the Sacramento-directed housing quota — the state has mandated that Huntington Beach build an additional 13,000 units — as an existential threat to the town’s authority. 

“We’re doing a two-prong process,” McKeon said. “We’re doing what the state has asked us to do, and, on a separate path, we’re unleashing our city attorney to fight in court because we do believe in local control, and we do believe that the state is overstepping their bounds based on Huntington Beach being a charter city.” 

Along with the ordinance, the city plans to file a lawsuit in the coming weeks to challenge the state’s methodology in determining RHNA (Regional Housing Needs Assessment) allocations, the housing plan quotas that determine state compliance and potentially open cities up to penalties, including builder’s remedy. 

It’s a suit that will help establish Huntington Beach as a poster child for resistance to builder’s remedy even as the controversial provision continues cropping up around the state and could offer insight into its legal authority. In recent weeks pro-housing groups have begun filing their own lawsuits in an effort to clarify developers’ right to use the provision.  

“We’ll fight this with every fiber of our being, because we have to,” McKeon said  in an interview. “Otherwise, what’s the point of having a council, if you’re just going to blindly take directives from Sacramento?”