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Column: ‘Builder’s remedy’ law could pressure cities resistant to additional housing

Cities that don’t have their housing act together better do so soon — or perhaps they could get a 15-story apartment building they don’t want.

That’s what’s happening in Santa Monica and it could serve as a cautionary tale for cities fighting state demands that they make way for more housing.

Like Santa Monica, some San Diego County cities have had their housing plans rejected by the state. Earlier this year, the vast majority of nearly 200 such plans in Southern California were rejected by the state as inadequate, sending those cities back to the drawing board.

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If jurisdictions don’t comply, developers in many instances could bypass zoning and height restrictions, essentially moving their projects forward without local government approval. Those proposals must include a certain number of homes offered at below-market rates and can have no specific adverse impacts on public health or safety.

This process, known as “builder’s remedy,” stems from a 2019 law aimed at forcing cities to heed state mandates for substantially more housing. With a burgeoning homeless population and a shortage of housing for middle- and low-income residents, state officials in recent years have taken more aggressive legislative and legal steps to bring pressure on reluctant cities.

Because the law was relatively new, assessing what effect it would have largely had been theoretical. That appears to be changing.

Santa Monica has had 12 builder’s remedy projects submitted, totaling nearly 4,000 homes since the city’s so-called housing element fell out of state compliance, according to the Santa Monica Daily Press. That includes a 15-story building of some 2,000 units. There are also residential buildings 12 and 11 stories high being proposed.

All this predictably has created a buzz among developers, housing advocates and most certainly locally elected officials across California.

How this will play out is uncertain. That isn’t to say another Coronado Shores-like high-rise development will suddenly pop up along the coast. Coronado is one of four local cities that challenged housing requirements handed down by the state and enacted by the San Diego Association of Governments, the regional planning agency.

Coronado, Imperial Beach, Solana Beach and Lemon Grove joined in an unsuccessful lawsuit against SANDAG. The state Supreme Court declined to hear the cities’ appeal in September.

Even though the builder’s remedy takes key decisions out of the hands of local government officials, developers face other hurdles. There’s property to acquire, financing to obtain and a determination of whether projects pencil out with the below-market housing requirements.

There’s also the coming debate, and probably litigation, as to what constitutes a provable threat to public health and safety. For instance, does the potential for a large project to create tremendous traffic on a road not built for it qualify?

Further, local governments trying to avoid state housing mandates and recent rules allowing for more housing density have been creative in attempting to circumvent them.

Then there’s the realpolitik matter of whether developers want to anger local officials they will have to deal with in the future.

Even with all those hypotheticals, it seems the builder’s remedy at the very least gives developers significant negotiating leverage.

The builder’s remedy is part of an ongoing effort in Sacramento to wrest housing land-use decisions away from local government. Housing advocates and many state officials say a big part of California’s housing crisis is the result of years of local roadblocks being throw up in front of development.

Many residents want their neighborhoods to stay as they are and fear streets and other public facilities will become overloaded by development, threatening their quality of life. Many community groups are dominated by homeowners who are high-propensity voters and have substantial sway with local councils and boards.

The state Capitol has been the scene of many pitched political battles over housing legislation. Housing advocates and developers have been getting the upper hand in recent years.

Several marquee housing bills have passed, including SB 9 by state Senate President Pro Tempore Toni Atkins, D-San Diego, which allows up to two duplexes to be built on lots currently zoned for single-family homes.

By comparison, SB 330 flew somewhat under the radar, despite its title: the Housing Crisis Act of 2019.

The measure “prohibits a local agency from disapproving, or conditioning approval in a manner that renders infeasible, a housing development project for very low, low-, or moderate-income households or an emergency shelter unless the local agency makes specified written findings based on a preponderance of the evidence in the record.”

The Housing Crisis Act says such projects cannot be denied if they comply with zoning plans and criteria that were in effect at the time the application was deemed to be complete.

“Because Santa Monica’s housing element was out of compliance, the city’s zoning laws were suspended for more than six months of 2022, opening the door for a dozen (and counting) applications for new projects,” according to the Santa Monica Daily Press.

That suggests that even if a city such as Santa Monica soon gets state approval for its housing plan — the City Council there approved a revised one last week — the new rules are not retroactive.

”. . . according to the letter of the law, if a developer submits a builder’s remedy project while (a city’s) housing element is out of compliance, they could still construct that project even after the city’s housing element is certified,” according to Urbanize LA.

Some cities in San Diego County and elsewhere contend they can’t accommodate the level of housing demanded by the state and regional agencies. They seem to be fighting a losing battle.

Now cities that do not yet have a state-approved housing element will be looking over their shoulders to see if developers rush in.

State officials set requirements every eight years under the Regional Housing Needs Allocation, or RHNA, a bureaucratic process that for decades that was hardly on the tip of the public’s tongue.

Now they’ve put some teeth into it.