California Assembly passes bill to cut confusion around builder’s remedy

Bill aims to standardize provision for developers, reduce affordable requirements

<p>A photo illustration of Assemblymember Buffy Wicks (Getty, California State Assembly Democratic Caucus)</p>

A photo illustration of Assemblymember Buffy Wicks (Getty, California State Assembly Democratic Caucus)

Builder’s remedy, a provision that has opened up doors to easier development in California, is finally getting attention from lawmakers. 

The California State Assembly passed a bill last week that aims to create more clarity and structure around how developers can use builder’s remedy, making it the first piece of legislation to address the provision since the 1990s, when it was formed. 

With builder’s remedy, cities lose the power to approve or reject housing plans that meet certain affordability thresholds if they don’t get their housing plans approved by the state by a certain deadline. Many cities have fallen vulnerable over the last few years, including Santa Monica, Malibu and Beverly Hills. And a lack of clarity around the provision has led cities to fight back, leading to a number of lawsuits across the state. 

If it passes the Senate and is signed by Governor Gavin Newsom, the bill, AB 1893, would cut the affordable housing requirement from the current 20 percent to 10 percent. Projects with 10 or less units would be exempt from the affordable housing requirement altogether. 

The bill would also bar the use of builder’s remedy in industrial zones.

“This bill is attempting to really solidify builder’s remedy as a housing production tool,” Dave Rand, a land use attorney and partner at Rand Paster Nelson, said. “Right now, builder’s remedy is the subject of a lot of disagreement between cities over what it means.” 

The bill would also provide “guardrails around what can be proposed in terms of builders remedy projects,” including  limitations on density and standards for builders, and how many projects still allow them to significantly exceed baseline zoning, according to Rand.

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For developers who’ve been locked in lawsuits over the provision, any legislative clarity is welcome.

“Anything that clarifies and codifies builders’ remedy will be helpful, because as it stands, now, a lot of cities are resistant to it because they think that it’s not a real thing,” said Leo Pustilnikov, a developer who has taken advantage of builder’s remedy and has filed multiple lawsuits against cities, including Beverly Hills, in cases where the city has tried to fight the project.

“It makes it so that builders’ remedy will now be relevant in all communities of California, rather than just the more affluent, so it will make cities that may not have worried about it as much take their housing more seriously,” he said. 

Representative Buffy Wicks, who represents the 14th Assembly District, encompassing East Bay cities across Northern California, is behind the bill. 

“The fact that this is being offered by Assemblymember Buffy Wicks — she’s got incredible credibility when it comes to housing,” Rand said. “So the fact that she is pushing this is significant in and of itself, and greatly increases the likelihood” of the bill’s final adoption.

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Attorney General Rob Bonta, who has been strict in trying to uphold builder’s remedy, also backed the bill earlier this year. 

“We are finally updating this important provision to be clearer for local governments, planners, developers and courts,” Bonta said in a statement in April.