Legislation to Modernize Builder’s Remedy, Encourage Cities to Plan for the Future, and Facilitate Housing for All

Photo by Liz Sanchez-Vegas on Unsplash

Special to the Vanguard

Sacramento, CA – Legislation that would facilitate the construction of housing in cities and counties that fail to adopt a compliant housing element on time has been authored by Assemblymember Buffy Wicks.  On Tuesday, the legislation gained a key sponsor in AG Rob Bonta.

Under California’s Housing Accountability Act (HAA), failure to adopt a timely and compliant local housing plan triggers the so-called “builder’s remedy,” a provision in effect since 1990 that limits the ability of local governments to restrict the development of new affordable and mixed income housing development projects. If enacted, Assembly Bill 1893 (AB 1893) will modernize and improve the efficacy of the builder’s remedy.

“California is facing a housing crisis of epic proportions. That is why we have been acting with great urgency, and why I’m now proud to sponsor AB 1893,” said Attorney General Rob Bonta. “The builder’s remedy is meant to hold accountable jurisdictions that do not adopt a compliant housing element on time, because every Californian suffers when cities and counties fail to plan for the future. It has been over 30 years since the builder’s remedy was enacted and it’s remained in effect, largely unchanged, since then. With AB 1893, we are finally updating this important provision to be clearer for local governments, planners, developers, and courts, while ensuring that even cities without up-to-date housing plans continue to develop desperately needed housing that is affordable to middle-class and lower-income Californians.”

“It’s going to take all of us to solve our housing crisis, and AB 1893 will require all cities and counties to be a part of the solution,” said Assemblymember Buffy Wicks. “The message to local jurisdictions is clear — the days of shirking your responsibility to your neighbors are over.”

“California Community Builders believes AB 1893 is essential, common sense legislation. Housing is a top concern for Californians throughout the state — and especially Californians of color who suffer disproportionately from high housing costs and a lack of homeownership options they can afford,” said Adam Briones, CEO of California Community Builders. “AB 1893 will modernize the Housing Accountability Act for the 21st century and ensure clear, consistent, reasonable consequences when cities don’t follow the rules.”

“Habitat for Humanity California and our 33 Habitat affiliates express our strong support for AB 1893,” said Maureen Sedonaen, Board Chair of Habitat for Humanity California, and CEO of Habitat for Humanity Greater San Francisco. “We believe in using all the tools in our toolbox to build affordable housing, and this legislation calls on local governments to join us in these efforts. Let’s not spend time litigating, let’s spend our time building affordable housing together.”

Under the HAA’s builder’s remedy provision, local governments subject to the builder’s remedy may not deny certain housing projects — in particular, those that include certain thresholds of low- or moderate-income units — for inconsistency with zoning or land use designation. This is a limitation placed on cities and counties to encourage them to act in good faith and follow the state’s housing element law. Under the housing element law, every city and county must periodically update its housing plan to meet its Regional Housing Needs Allocation (RHNA), or share of the regional and statewide housing needs. The housing element process is a critical part of California’s housing strategy because it allows cities and counties to plan for their regional fair share while addressing specific local needs and conditions. When a jurisdiction fails to adopt a compliant housing element on time, it prejudices residents and neighboring jurisdictions and impairs statewide planning. While developers have submitted dozens of builder’s remedy applications in the past year alone, many noncompliant jurisdictions have not been processing those applications in a timely fashion.

If enacted, AB 1893 would provide more guidance and certainty as to the applicable standards, reducing the prospect of disputes and litigation that impede the development of additional housing. For example, AB 1893 would:

• Designate sites appropriate for residential development, including housing, retail, and office space. Sites that have an existing industrial use or are adjacent to an industrial use would be precluded from the builder’s remedy. Industrial uses can pose environmental threats to housing that is located nearby.
• Provide clear objective standards, such as upzoning by doubling, or in high resource areas tripling, the density allowed under current zoning. Upzoning is where the amount of development allowed on a parcel of land is increased.
• Make technical amendments to clarify how the builder’s remedy interacts with other state law.
• Incentivize housing construction by making more development projects feasible, and enabling smaller developers to compete. By exempting sites 10 units and fewer from affordability requirements and by reducing the affordability requirement for mixed-income projects from 20% to 10%, many more builder’s remedy projects will be financially feasible, including small-scale “missing middle” projects. “Missing middle” projects are relatively small multifamily development projects, like duplexes and townhomes, that are more affordable than similarly located single-family homes, and serve the needs of more diverse households.
• Allow city planning staff to quickly process builder’s remedy applications, since they will be required to utilize the baseline development standards set forth in the bill. Existing law is less certain.

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