By David M. Greenwald
Executive Editor
Davis, CA – The news broke late on Friday afternoon, but the handwriting was on the wall before that—the letter from HCD on April 3, the announcement that Davis was under the Builder’s Remedy, the special closed session meeting on Tuesday, all pointed the way for the announcement that Taormino was invoking the Builder’s Remedy for his project, Palomino Place.
That the project would qualify for the Builder’s Remedy is not a big surprise. The project is surrounded by only one side of ag land—and there is an active application for a project on that ag land. Unlike the other potential Measure J projects, it is annexed into the city already.
All they needed to do was get the project above the 20 percent threshold for affordable housing—which they did by adding to the number of ADU units.
So now what? No one actually knows.
Under the “Builder’s Remedy,” a city like Davis which is now out of compliance with Housing Element law loses its ability to deny affordable housing projects on the grounds the project is inconsistent with zoning and/or General Plan standards.
There are now two issues at play.
The first issue is that the city council last week determined that it would not move any of the four projects forward to the ballot for 2024.
The council cited the very quick turnaround time for processing the application as well as the need for Davis to get a pause on contentious land use battles.
At the same time, and unbeknownst to the public and the council, HCD had sent the city a letter failing to certify the second version of the Housing Element, putting the city in some jeopardy.
From the developer standpoint, the decision by council was likely met by some frustration.
However, the applicant denied that decision was the motivating factor.
Attorney Matt Keasling representing the applicants notes, “Although the Applicant already submitted a pre-application on October 4, 2021 and a complete Project application on July 12, 2022 which was subsequently deemed complete by the City on August 19, 2022, the Applicant has decided to convert the application to utilize State Law associated with SB 3330 and the HAA that will expedite the processing of the Project.”
This was done, he said, “in part as response to the Council’s recent discussions pertaining to the extreme need for more housing” as well as the recognition of the lack of adequate sites to fulfill the city’s share of RHNA housing requirements.
Keasling also noted that “this application is not in response to the City having rejected the Project or over-burdening it with infeasible conditions of approval as has been the case in other HAA projects around the State.”
Rather, he continued, “this conversion to a Builder’s Remedy project is being sought so as to expedite and bring simplicity to the development of housing and affordable housing.”
The Builder’s Remedy does not bypass environmental review—so there would still need to be an EIR.
Can invoking the Builder’s Remedy compel the city to process the application? The city did not comment until the City Attorney—at least—reviewed it. But that seems rather likely given the whole purpose of the Builder’s Remedy is to remove city discretion from the process.
Less certain is the next question of whether the Builder’s Remedy would allow the applicant to bypass Measure J altogether.
As the Sacramento Business Journal reported last week, “Davis also requires voter approval for new projects that would require annexing land currently used for agriculture to the city. Hernandez said she couldn’t comment on whether that would be affected by a builder’s remedy because it’s outside the department’s housing law accountability purview.”
One possibility is that Builder’s Remedy status bypasses Measure J vote requirements since the city would be precluded from preventing approvals of projects while in this status.
However, no one really knows and most likely if the applicant attempted to bypass Measure J, the city and possibly some citizens of the city would sue, and it would go to the courts to decide.
This would be a risky path for the applicant to take. First, it is by no means certain that they would prevail and, if they lose in court and have to go to a vote, their project is likely dead. Even if they win, they would earn the enmity of many in the community and possibly the council and city staff.
There are also risks for the city to go the legal route. It is possible that HCD or the state would use such an opportunity to attempt to invalidate Measure J altogether.
The safest path then for probably the community and the applicants would be for the applicants to simply use Builder’s Remedy to push the project through the process, but to aim to have it culminate in a vote of the public rather than attempting to bypass Measure J altogether—but that’s simply speculation on my part.
Where this is all headed it is hard to know. The city has acknowledged that it will be very difficult to impossible to meet future housing allocations without going to peripheral projects.
The council has expressed interest in putting some sort of reform of Measure J on the ballot to allow for a more heavily affordable housing project to bypass vote requirements. Whether the community is willing to support such a reform is unclear, nor is it clear at what point the state simply steps in and attempts to declare Measure J an impenetrable barrier to building adequate housing.
In other words—stay tuned. Times are about to get very interesting.
Measure J will likely become a victim of its own success. Good riddance.
Good riddance to Measure J indeed.
What it means is that opponents will likely use it as an example of what will subsequently happen if voters approve any peripheral proposal. Baseline and development agreements would have no meaning.
But it seems to me that the state itself will have a “problem” with counting individually-owned ADUs as “Affordable housing”. Who is going to monitor that, going forward?
“What it means is that opponents will likely use it as an example of what will subsequently happen if voters approve any peripheral proposal. Baseline and development agreements would have no meaning.”
You mean if the city is out of compliance with state law on its Housing Element?
Of course – as they are now, and could be again at any point in the future.
And the change in baseline or development agreements could occur prior to, during, or post-construction.
Seems to me that Nishi could make changes right now, as well. Or, Bretton Woods.
But in the case of Palomino Place, the ADUs would have specific, permanent income and rental limits under the state’s new requirements. Who is going to monitor and enforce those on an individual level, assuming that the owners even choose to rent them out in the first place? Seems to me that the state itself would have concerns about that.
Unless the state is going to go after the individual homeowners on a never-ending basis – perhaps even “forcing” them to make the ADUs available for rent in the first place?
I can see it now – a homeowner discussing the situation with someone else:
“Yeah, Bob – I don’t like renting it out, nor do I like the people who are renting it from me (literally in my own “backyard”). Let alone the limited rent I can charge. But you know how it is, I already received a threat from the attorney general if I don’t do so.”
“But I may also need to evict them anyway, since their income has risen above the allowed amount. Again, the attorney general threatened me, if I don’t do so.”
“Personally, I’d like to burn the thing down, but the attorney general threatened me if I do that, as well.”
The City Council should sue to defend Measure J against the builders remedy. Doing so would give the courts the opportunity to weigh in without a landowner alienating the community if Measure J withstands the legal challenge.
If they don’t want to sue the CC could ask for an Attorney General opinion on the builder’s remedy and Measure J.