Will builder’s remedy come to South Bay municipalities?

Court battles likely to decide consequences after most cities miss state deadline

Keith Diggs of YIMBY Law
Keith Diggs of YIMBY Law (LinkedIn, Getty)

The deadline has now passed for Bay Area municipalities to have their housing elements certified by the state’s Department of Housing and Community Development. In theory, this now subjects any city or county out of compliance to builder’s remedy, with few options for denying a housing development where at least 20 percent of the units are affordable to low-income households.

In reality, said YIMBY Law’s Keith Diggs, we may not see many builder’s remedy developments in tony towns such as Atherton, Palo Alto and Woodside without a court battle. Rather than trying to pass a housing development plan likely to get HCD approval, some municipalities have spent the last few months “self-certifying” their plans without the state’s approval in the hopes that that will be enough to drive developers off, he said.

“An affordable housing developer would have to litigate a housing element’s noncompliance in order to obtain the builder’s remedy,” he said via email. “I suspect this is the real motivation behind several cities’ rush to adopt.”

That said, Diggs would be “somewhat disappointed” if he didn’t see builder’s remedy filings in the South Bay and Peninsula this month, given how much the issue has been publicized, including through YIMBY Law’s own “well-attended” seminars on the subject.

Cities in play

Most Peninsula and South Bay municipalities did not respond to a request for comment on the status of their housing element plans, and HCD did not respond to a request for comment on the ramifications of missing the Jan. 31 deadline.

But, according to Diggs, within Santa Clara County, Cupertino, Palo Alto and the unincorporated county areas are “certain to be subject to the builder’s remedy,” with San Jose, Sunnyvale, Mountain View, Campbell and Saratoga likely as well.

Within San Mateo County, Daly City, Burlingame, Pacifica, Half Moon Bay and unincorporated areas will be subject to the builder’s remedy, he said. The rest, with the exceptions of Redwood City, South San Francisco, East Palo Alto and Portola Valley, “should be held out of compliance” though “it’s hard to predict how the Peninsula’s rampant self-certifications will shake out in court.”

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For cities that did not declare themselves in compliance before the deadline, but also don’t have their plans certified by the state, it’s unclear what the repercussions will be. Burlingame’s housing element point person, Joseph Sanfilippo, said the city did not have any concerns about builder’s remedy even though it does not plan to submit its first draft to HCD until about two weeks after the Jan. 31 deadline, with a possible certification sometime in May.

“The General Plan and draft housing element have identified ample capacity to meet the RHNA numbers, along with a rather substantial buffer,” he said via email, referring to the Regional Housing Needs Assessment — the number of new homes mandated by the state in each city and county.

In Burlingame, as in many other municipalities, these numbers have gone up to about three times what they were during the last eight-year housing element cycle due to the continued undersupply of housing, especially for low-income families.

Complex law

Builder’s remedy was on the table during the last cycle too, and in fact has been on the books since 1990. But the ability to bypass most local zoning restrictions to build affordable housing was not utilized until a Santa Monica developer brought forth a plan to build a 10-story, 75-unit apartment building in the low-density beach community last fall.

Whether or not Bay Area developers will step forward to take advantage of the “zoning holiday” YIMBYs have been hoping for remains a question, as do the full repercussions of missing the deadline. “There is no unitary set of ‘consequences’ for noncompliance,” Diggs said. “The statute’s complexity is a real problem that I wish the Legislature would address.”