Governor likely to sign proposals to ramp up “builder’s remedy” and undermine local self-certification

Gavin Newsom does not believe in city or county zoning and permitting rules.  Like a dictator, he wants the State to control where homes are built in Maywood, Taft or Berkeley.  This so-called “builders remedy” is merely his effort to buy off developers and construction firms, along with unions—while recreating slums in YOUR town.

“AB 1893 (Wicks) modifies the Housing Accountability Act (HAA) to expand the ability of developers using the builder’s remedy to bypass local general plans and zoning to construct massive residential projects, as harsh payback to any community that has not yet obtained an HCD approved housing element.  AB 1886 (Alvarez) and AB 2023 (Quirk Silva) increase vulnerabilities to builder’s remedy projects by enacting tighter timelines governing housing element approval and undermining the ability of communities that may disagree with HCD’s interpretations to self-certify their plans. SB 1037 (Wiener) authorizes civil penalties of up to $50,000 per month for violations. CPPG has made a detailed analysis of each of these measures available to our clients.

If you live in Goleta, you no longer go to City Hall to protect—you need to travel to Sacramento and complain to a State agent who never visited Goleta—and probably can’t find it on a map.  This is how Democracy Ends—and the Democrats are doing their best to quicken the pace.

Governor likely to sign proposals to ramp up “builder’s remedy” and undermine local self-certification

Public CEO,  9/18/24  https://www.publicceo.com/2024/09/governor-likely-to-sign-proposals-to-ramp-up-builders-remedy-and-undermine-local-self-certification/

After dropping plans for a $10 billion affordable housing bond, and trimming housing funding in the budget, the Legislature’s 2024 housing package once again comes down to the continuous theme that local governments are the sole impediment to housing production. One theme, this year, are bills that increase pressure on local agencies to obtain housing elements approved by the Department of Housing and Community Development (HCD). These bills fail to recognize the existing legal process that ensures neutral judicial dispute resolution over housing element compliance. Instead, they skew the balance with court presumptions, tight deadlines (with no committed funding to assist agencies with compliance), and other legal vulnerabilities. This approach exposes more communities to challenges in obtaining HCD-certified elements, risks financial penalties, and creates chaotic conditions for “builder’s remedy” development. In short, more sticks—zero carrots.

AB 1893 (Wicks) modifies the Housing Accountability Act (HAA) to expand the ability of developers using the builder’s remedy to bypass local general plans and zoning to construct massive residential projects, as harsh payback to any community that has not yet obtained an HCD approved housing element.  AB 1886 (Alvarez) and AB 2023 (Quirk Silva) increase vulnerabilities to builder’s remedy projects by enacting tighter timelines governing housing element approval and undermining the ability of communities that may disagree with HCD’s interpretations to self-certify their plans. SB 1037 (Wiener) authorizes civil penalties of up to $50,000 per month for violations. CPPG has made a detailed analysis of each of these measures available to our clients.

Under the HAA, when a city or county lacks an HCD compliant housing element, a builder’s remedy is asserted. This remedy purportedly allows developers to construct residential projects and emergency shelters out of compliance with local general plans and zoning. Developers, however, have encountered stumbling blocks in advancing this strategy, because their projects still require compliance with CEQA,[i] and Courts must decide whether self-certified housing elements substantially comply with the law. The above bill package seeks to remove some of the legal obstacles builder’s remedy projects have encountered and establish generous developer-friendly parameters for massive projects—irrespective if a local agency has been working in good faith with HCD to try and seek certification.

When disagreements with HCD staff arise, local agencies have the statutory authority to self-certify and adopt findings justifying their belief that their plan substantially complies with the law, despite state suggestions. This approach recognizes that interpreting housing law often hinges on the unique characteristics of each California community. Considerations include:

• Population size
• Access to public transportation
• Traffic congestion
• Infrastructure and utility capacity
• Environmental factors such as wildfire risk, drought, flooding, and seismic concerns
• Local housing needs and demographics, like the demand for single-family units, multi-family, mixed-use, or senior housing

All these elements are carefully evaluated by community leaders through years of technical and complex planning mandated by the State. While the State sets the framework, local officials dedicate their careers to meticulously planning their communities.

While self-certified elements do not receive the statutory presumption of validity, and the local agency may lose access to some state funding, the element remains a valid local law unless a Court challenge determines otherwise. The above package will penalize any local agency that chooses to self-certify by immediately exposing them to civil penalties and builder’s remedy projects until a Court decides the matter.

Plans, however, do not dictate production. Markets are fickle, interest rates go up and down, employers come and go, and developers pull back when labor, materials and other costs increase. Funding for affordable housing restricted to low- and moderate-income households relies on subsidies.

Should this package be adopted, California’s housing development patterns will increasingly occur within three tiers.

• Communities that have HCD approved housing elements. While these plans have been subject to rigorous reviews from state planners, production will still depend on market forces and the availability of public subsidies.
• Builder’s remedy projects which take advantage of any community which fails to either obtain or maintain HCD certification. Massive projects can be constructed out-of-scale with local general plans, zoning and the surrounding community. HCD may encounter increasing pressure from the development community or otherwise choose to delay certification in specific communities to allow more projects.
• Projects which can be built “by right” despite being out of compliance with local zoning, even in communities which have HCD compliant elements. These projects are being authorized under a growing array of laws including SB 9 (Atkins) of 2021, AB 2011 (Wicks) of 2022, SB 6 (Caballero) of 2022, and this year’s SB 1123 (Caballero).

While accountability and compliance with state mandates are crucial, it is also essential to respect local decision-making and allow for diverse solutions that reflect the unique characteristics of each community. Striking a balance between these two objectives is key in creating sustainable and inclusive housing policies for all Californians. Unfortunately, these measures ignore this balance. Collectively this package of bills continues to undermine the role of local planning, empowering developers, legislators, and state department staffers to dictate terms to neighborhoods and communities.

Last year, Governor Newsom signed 97% of the housing bills presented to him, vetoing only two. Given this track record, it’s reasonable to expect the Governor will approve this package of legislation. However, when it comes to actually building affordable housing, the shelved $10 billion bond and the restoration of housing funding in the budget would have been more beneficial.