YIMBY Law readies Bay Area residents, developers for builder’s remedy

There’s a “zoning holiday” coming to the Bay Area on Jan., 31, and locals have questions.

YIMBY Law hosted a workshop for Bay Area residents and developers to learn more about builder’s remedy. While the focus of the meeting revolved around bypassing single family zoning, the hosts answered a broad range of questions regarding the legislative tool.

The provision comes from a 1990 California law that aimed to spur housing development across the state, and works by invoking a penalty on jurisdictions that are failing to meet their state-directed housing goals. For cities that are out of compliance, the penalty is a loss of authority over the zoning entitlements process. This means that even residential projects that don’t fit local zoning, such as one 15-story, 2,400-unit application in Santa Monica, are automatically approved.

There are caveats. To qualify for the builder’s remedy provision, at least 20 percent of a project’s units must be classified as affordable, and a city could still potentially deny approval on rarer, non-zoning grounds, such as a public health risk. (To guard against frivolous rejections, state law also includes penalties for cities that deny projects in bad faith.)

For the discussion, YIMBY Law recruited bay area land use attorney Bryan Wenter who fielded most of the questions and provided insight on the opportunities and challenges builder’s remedy proposes.

“In the past, in the development community there was a desire not to step on the toes of public agencies and to play nice in the sandbox,” he said. “But the law has been strengthened and the development community is relying on it [builder’s remedy] ever more.”

One of the biggest hurdles developers could face is navigating through California Environmental Quality Act requirements. While builders remedy does allow projects to bypass local approval, there is no reprieve from complying to CEQA requirements.
“CEQA is still such a problem in terms of processing approval on housing projects, and local agencies recognize the soft spot CEQA holds that can drag projects out,” Wenter said.

Wenter went on to say that while CEQA could be a hurdle, the state agency also “expressly recognizes the need to provide housing for every Californian.”

Developers should also consult their attorneys to see if they qualify for a CEQA exemption. For example, an infill exemption would bypass CEQA requirements if the project doesn’t damage scenic resources and is not being built on a site affected by hazardous waste.

Builder’s remedy could not only bypass local approval, but also circumvent initiatives voted on by residents. Wenter noted that density bonus laws allow developers to forgo some limitations and standards when the project meets certain benchmarks, and speculated builder’s remedy could follow the same model.

It takes months for local agencies to have their housing elements plans adopted, and there are a number of jurisdictions in the bay area that have not submitted their drafts to the HCD.

“It is virtually impossible to imagine that any of those agencies will have adopted compliant housing elements by the end of January,” Wenter said.

There is a two and half year timetable to start construction of a project that is approved through builder’s remedy and developers should be aware of deadlines regarding permits they obtain.

“It’s a great tool, but a builder’s remedy needs to be used cautiously and wisely,” Wenter concluded.

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