YIMBY Law maps legal strategy after builder’s remedy win in Cupertino

Group picks its battles in the Bay Area as the “movement is just getting started”

YIMBY Law Wins Builder’s Remedy Suit With More to Come
YIMBY Action's Keith Diggs (Getty, YIMBY Action)

YIMBY Law plans to accelerate its legal efforts against cities that are out of compliance with state housing law, according to YIMBY Law attorney Keith Diggs. 

“The housing crisis is national, and YIMBY lawyers like me are going to become more and more common the longer the housing shortage persists,” he said via email. “The YIMBY movement is just getting started.”

YIMBY Law recently won a court case in Cupertino after the Silicon Valley city admitted it had missed the deadline to obtain certification of its housing element, a state-mandated plan to build more housing, both affordable and market-rate. Municipalities that miss their deadline are subject to builder’s remedy, which allows for near-automatic approval of housing projects with at least 20 percent low-income housing. 

In Cupertino, the housing element for 2023 through 2031 requires the construction of 4,588 new homes, including 1,880 that would be affordable for lower-income households. The deadline for a state-approved element was Jan. 31, 2023. After the city missed the deadline, YIMBY Law, along with the California Housing Defense Fund, petitioned for a court intervention on Feb. 3 last year. Nearly one year later, the city agreed to a stipulated judgment that acknowledged that affordable housing developers would be able to use builder’s remedy in the city, best known as the home to Apple’s headquarters. 

“Cupertino recognizes it must plan for housing,” Sonja Trauss, executive director at YIMBY Law, said in a statement after the judgment. “The city missed its legal deadline, and that has consequences. Fortunately, the consequences of today’s settlement will be more housing.”

The trial court decision does not impact any other California cities that missed the deadline, Diggs said, and YIMBY is still pursuing a legal case against Sausalito. The organization is challenging the North Bay city on the substance of its housing element, and for “cutting corners” on its CEQA review, he said. He expects that case to go to briefing and judgment sometime this year. 

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A YIMBY suit against Burlingame was dismissed after that city adopted a compliant housing element. But the organization is keeping its eye on Fairfax and Palo Alto, which both self-certified their housing elements rather than going through the process of getting state approval. That made YIMBY Law’s suits against both cities for failure to adopt a housing element moot. 

Since a lawsuit for noncompliance after adoption is more complicated than a suit for failure to adopt, and Diggs is currently the only attorney on staff at YIMBY Law,  the organization plans to wait and see if the “right project comes along and needs our help,” before pursuing further action against those cities. 

“We’re watching to see how other cities treat builder’s remedy projects while they remain out of compliance,” he said, adding that the statute of limitations to sue over a noncompliant housing element is more than two years.

YIMBY Law is also keeping track of other housing-related suits around the Bay. The organization is an “interested party” in Millbrae’s suit against San Mateo County to stop a 100-room La Quinta Inn from becoming permanent supportive housing. The county intends to buy the hotel for $33 million and convert it to homes.

The City of Millbrae had sought a temporary restraining order against the conversion because it claimed locals needed to vote to approve the sale before it could go through. That request was denied, Diggs said.

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