State rejects Berkeley’s last-minute housing element

City opens itself up to builder’s remedy, loss of funding

Mayor of Berkeley Jesse Arreguín (Berkely, Getty)
Mayor of Berkeley Jesse Arreguín (Berkely, Getty)

State officials have rejected Berkley’s most recent housing element draft, so the East Bay city will now miss the Jan. 31 deadline for compliance.

In a letter responding to the latest draft, the HCD said Berkeley addressed many issues, but there are still concerns. They include identifying land suitable for residential development, the need for removal of constraints for development and the promotion of fair housing.

“Despite our best efforts to strengthen Berkeley’s housing element, HCD says we have more work to do,” Councilmember Rashi Kearwani said. “Specifically, HCD tells Berkeley to fix our sites’ inventory and do more to affirmatively further fair housing.”

Noncompliance on the housing element makes the city vulnerable to penalties, which can include loss of millions of dollars of state funding for housing and the loss of local control for zoning through the builder’s remedy legal clause.

A 1990s provision in a California state law, builder’s remedy allows developers to bypass local approval for residential projects as long as at least 20 percent of units would be considered affordable.

Starting Feb.1, Bay Area cities that do not have a compliant housing element would open themselves up to builder’s remedy. Southern California had an earlier deadline and saw multiple large development projects filed under builder’s remedy. WSC was the first to test builder’s remedy by filing plans for more than 4,000 units over 12 projects in Santa Monica. Miami-based Lennar filed to build 530 homes on a golf course in La Habra, which is the largest builder’s remedy project proposed so far in Orange County.

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Since the execution of the builder’s remedy is untested, cities will likely test the legitimacy of these applications through litigation.

“The builder’s remedy goes into effect on February 1 in cities that don’t adopt a compliant housing element by then,” Keith Digg, legal manager for YIMBY Law, said. “Stubborn cities can force this issue to require litigation.”

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