For decades, local governments in California have been able to resist state-mandated housing goals with relative impunity. Wealthy enclaves, in particular, have often wielded zoning laws and procedural roadblocks to stymie the development of affordable housing.
But what had been an obscure legal provision known as the builder’s remedy has begun to reshape the housing landscape, forcing cities to approve projects they would otherwise block.
This is illustrated in Michael Smolens column in the San Diego Union-Tribune.
Encinitas Mayor Bruce Ehlers described triggering the builder’s remedy as the “nuclear option”, while City Council members lamented that they were acting under “absolute duress and coercion” when they approved a 448-unit housing project.
According to Smolens, their rhetoric reflects a growing fear among local officials who for years have avoided complying with California’s ambitious housing mandates.
The builder’s remedy has gone from a little-known provision to one of the state’s most powerful housing laws. It empowers developers to override local zoning laws in cities that fail to adopt a state-certified housing plan, allowing them to propose high-density developments that local officials would otherwise have the authority to reject.
This legal tool is already proving to be one of the most effective measures in the state’s battle to break local housing obstructionism.
The law has existed for decades but gained new force in 2019 when California began adding real penalties for cities that refuse to comply with their housing obligations. One of the most significant cases illustrating this shift occurred in La Cañada Flintridge, a wealthy Los Angeles suburb that had rejected an 80-unit mixed-use development with affordable housing units.
City officials argued that they had a valid housing plan in place when they denied the project. But the court ruled against them because the city was out of compliance at the time the project was submitted—a key detail under the builder’s remedy framework.
After years of legal challenges, La Cañada Flintridge was ordered to post a $14 million bond to cover the financial losses incurred by the developer. The staggering sum included lost profits, rising construction costs, and legal fees. Faced with the prospect of losing a third of its $42 million annual budget, the city finally dropped its appeal.
The financial repercussions of defying the builder’s remedy are clear: if a city unlawfully blocks housing, it can be held accountable for the damages. This case is sending shockwaves through other communities that have long resisted development, prompting some to rethink their approach.
The next high-profile builder’s remedy case may come in Del Mar, another affluent coastal town. Developers have proposed Seaside Ridge, a 259-unit mixed-income project that was repeatedly rejected by the city. The developers sued under the builder’s remedy, and now, with the La Cañada Flintridge ruling setting a precedent, Del Mar could be on the hook for millions if it loses its case.
While the city now has a state-approved housing plan, it did not when the project was first submitted—the exact situation that led to the ruling against La Cañada Flintridge. Developers have scheduled a June 13 court date, signaling their intent to move forward with litigation.
Encinitas and San Diego have also begun feeling the pressure. Encinitas officials conceded that rejecting projects could make them vulnerable to builder’s remedy lawsuits. San Diego City Councilmember Raul Campillo warned that the city needed to remain in compliance with its housing obligations to avoid triggering the builder’s remedy, calling such an outcome “completely unacceptable.”
In both cases, the mere threat of builder’s remedy action has forced local leaders to reconsider restrictive housing policies.
Before the builder’s remedy was widely understood, many cities simply ignored their housing obligations. Now, cities across California are scrambling to meet state-mandated housing targets, fearful of losing control over local zoning.
According to Garret Weyand, a developer involved in the La Cañada Flintridge case, the builder’s remedy is “probably going to be one of the most successful laws to build housing in the state of California.” For housing advocates, this is a long-overdue correction to decades of local obstructionism.
The builder’s remedy does not give developers a blank check—they must still meet affordability requirements, environmental regulations, and planning standards. However, it eliminates the ability of cities to arbitrarily deny projects or drag their feet on approving much-needed housing.
One of the biggest shifts brought about by the builder’s remedy is that wealthy, politically powerful cities are no longer able to shield themselves from state housing mandates. In the past, places like La Cañada Flintridge, Del Mar, and Encinitas used procedural maneuvers to block projects, knowing the state had little recourse beyond mild reprimands.
Now, the stakes have changed. Cities that ignore their obligations risk losing control over local zoning, facing expensive lawsuits, and being forced to pay millions in financial penalties.
This shift reflects the broader transformation in California’s approach to housing policy. For years, the state allowed local governments to dictate their own pace of development, even as housing shortages reached crisis levels. Now, state lawmakers and courts are making it clear: if cities refuse to build, the state will find ways to override their obstruction.
California faces a severe housing shortage, with some estimates suggesting a deficit of over 2 million units. The builder’s remedy alone won’t solve this crisis, but it is already proving to be one of the most powerful tools in the state’s housing arsenal.
Critics of the builder’s remedy argue that it undermines local control, forcing communities to accept developments they don’t want. But proponents point out that many cities have abused their local control to block housing—and that this law is finally ensuring wealthy areas do their fair share.
Encinitas’ Mayor Ehlers warned that the builder’s remedy is the “nuclear option”, but for many housing advocates, it’s an essential step toward breaking through decades of NIMBY resistance.
As more cities begin facing builder’s remedy lawsuits and court rulings continue to favor developers, it’s becoming clear that this once-obscure law is now a defining force in California’s housing policy. The result? A state where local resistance can no longer stand in the way of desperately needed housing.
As I’ve been saying all along, this is the type of thing that needs to happen MORE-often, to spark the movement to remove control from the state.
But apparently, the builder’s remedy doesn’t pencil-out in Davis (in regard to already-developed land), due to the resulting Affordability requirements, the cost of tearing down/removing/rebuilding, etc.).
There is no housing shortage, by the way. This is a case of business/development interests infiltrating state government.
https://news.ku.edu/news/article/study-finds-us-does-not-have-housing-shortage-but-shortage-of-affordable-housing