Builder’s remedy looms as Oakland’s housing deadline nears

East Bay city plans to submit second draft for approval before Jan. 31

The Rockridge BART Station and Oakland Planning Director William Gilchrist (Getty,
The Rockridge BART Station and Oakland Planning Director William Gilchrist (Getty,

State housing officials delivered a simple message to Oakland’s planning staff: Good, but not good enough.

In a letter, the California Department of Housing and Community Development praised Oakland’s first draft housing element for addressing “many statutory requirements,” but said the final version of the plan should better reflect a strategy to pursue more density.

“Several (public) comments questioned the lack of units in North Oakland, specifically around the Rockridge BART station, as concerns around why several eligible parcels were excluded from the inventory,” the letter reads. “These issues must be addressed.”

The state agency recommended that the city explore prioritizing co-housing opportunities, reducing lot size minimums in some zones and “finding suitable parcels for housing in the Diamond District.”

Similar to all other cities in the Bay Area, Oakland is working to have its eight-year housing element plan approved by the state before the Jan. 31 deadline. The plans, which must be certified by the state, require that every city in California come up with a plan for meeting its Regional Housing Needs Allocation, known as RHNA. Oakland’s is required to build 26,000 units during the next eight years.

“I don’t need to express to anyone in this community the incredible importance housing and housing affordability plays in enhancing our community, and making sure there is a place for all of us in it,” William Gilchrist, Oakland’s planning director, said in a public meeting.

Oakland might feel extra pressure in recent days because of the announcement from the HCD that the 120-day grace period does not stop cities from enduring penalties if they don’t have their plan submitted by the Jan. 31 deadline. The grace period would only allow for the triggering of shorter rezoning timelines.

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San Francisco officials found out the news through Twitter and were reportley “incensed” that the planning department was operating with a wrong deadline. Oakland city officials did not respond to TRD’s request for comment.

One of the most consequential penalties Oakland is trying to avoid is developers invoking the “builder’s remedy” provision. If a city is out of compliance with state requirements to submit its housing element, the law takes approval out of control of local jurisdictions for projects that have at least 20 percent of their units as affordable. The project would be approved automatically.

Builders’ remedy has come into renewed focus after developers submitted plans for almost 4,000 units in Santa Monica, which failed to have its plan certified before its October deadline. The city has since had its plan certified by the state.

Oakland is attempting to avoid the same fate and is scheduled to hold a public meeting for comments on a second draft in November. Theoretically, the city could send its second attempt in December and have the plan approved by the deadline.

There are some who believe that Oakland will have the plan approved in time. The Campaign for Fair Housing Elements, a statewide coalition of housing organizations, put together a report of cities in the housing element process and determined that Oakland does not have a high chance of developers invoking the builder’s remedy provision.

As for local developers, they could hesitate to consider the builder’s remedy before the deadline passes, as John Cappiello, co-founder of CRC Development, told TRD “I have not explored using builder’s remedy in Oakland yet.”

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