There has been renewed interest in the Builder’s Remedy, in part because the California Department of Housing and Community Development (HCD) recently determined that (i) various local jurisdictions are either currently in non-compliance with the requirements of Housing Elements either may be in non-compliance as of January 31, 2023, and (ii) submission of an SB 330 Preliminary Application during the applicable non-compliance period grants the builder’s remedy.
The following is a step-by-step summary of the process for determining whether the builder’s remedy may apply to a proposed home development project.
STEP 1: CONFIRM HOUSING ELEMENT NON-COMPLIANCE
- For Southern California jurisdictions, the October 15, 2021 deadline has already passed. As of the date of this legal alert, over 150 Southern California jurisdictions are currently in non-compliance, including but not limited to Anaheim, Costa Mesa, Glendale, Laguna Beach, Laguna Niguel, Pasadena , San Bernardino, San Marino and Thousand Oaks. .
- Approximately 33 of Southern California’s non-compliant jurisdictions have adopted revised housing elements that are currently under review by the HCD.
- For jurisdictions in the Bay Area, the January 31, 2023 deadline for housing element compliance is fast approaching. As of the date of this Legal Alert, various Bay Area jurisdictions, including but not limited to San Francisco, San Jose, Berkeley, and Oakland, have not submitted a revised housing item to the HCD , so at least some of those local jurisdictions could miss that deadline.
- Please refer to the HCD case item compliance report for up-to-date information.
STEP 2: CONFIRM PROJECT QUALIFICATION UNDER HAA
- The project shall be considered a “residential development project” under the LHA (i.e. a project consisting solely of residential units, mixed-use developments consisting of residential and non-residential uses with at least less than two-thirds of the square footage designated for residential purposes). transitional or supportive housing).
- At least 20% of the housing in the project must be designated as low-income housing or 100% of the housing must be designated as moderate-income housing, as defined in the HAA.
- See our previous legal alert for more information on the HAA.
STEP 3: SUBMIT THE SB 330 PRELIMINARY APPLICATION
- A SB 330 the preliminary application for the housing development project must be filed with the local court immediately after the non-compliance of the housing element.
- No affirmative determination of “completeness” by the local court need be made for the builder’s vesting remedy to apply; all the applicant needs to do is submit a complete preliminary application.
- Local jurisdictions are required to adopt a preliminary application document form and checklist under SB 330.
- The acquisition process locks in “ordinances, policies and standards adopted and in force” when the preliminary application is filed, subject to specified exceptions, and the HCD recently found that this includes the non-conforming housing element of a local jurisdiction, which triggers the Builder’s Remedy, even if the Housing Element subsequently becomes compliant.
- Within 180 days of submitting a complete preliminary application, the applicant must submit a “complete” development application, as specified.
- See our previous legal alert for more information on SB 330, which, as we reported, was recently amended.
STEP 4: CEQA COMPLIANCE
- The housing development project will still be subject to CEQA approval if discretionary approval is required for the project.
- The scope of the CEQA review in the context of the Builder’s Remedy is an open question.
- SB 330 imposes a “five hearing rule” and shortens the time for approval of a housing development project following CEQA review to 60 days where, for example, a CEQA or MND exemption is required, and up to 180 days when an EIR is required.
- The HCD has already intervened when the CEQA review process has apparently been used by a local jurisdiction as a delaying tactic and will likely continue to do so.
- The proposed Builder’s Remedy housing development projects in non-compliant jurisdictions in Southern California should provide near-term guidance on how the HCD and the courts weigh this open issue.