CC 10-23-2024
#1
Statewide Housing Laws
Presentation
California’s Housing
Laws: The “Builder’s
Remedy”
Barbara E. Kautz
Goldfarb & Lipman LLP
City of Cupertino
City Council Study Session
October 23, 2024
Presentation Overview
• Key State Laws
• The Builder’s Remedy
• Preliminary Applications (SB 330)
• Density Bonus Law
• Litigation to Date Regarding the Builder’s Remedy
• New State Laws Effective January 1, 2025:
AB 1886 and AB 1893
2 The Builder’s Remedy
3 Key Provisions
Applies to “affordable”
projects with:
• 20% of the total units affordable
to lower-income households, or
• 100% of the units affordable to
moderate-income households
• AB 1893 reduces affordability to
7 – 13%
4 The Builder’s Remedy Provision
Additional finding to deny “affordable” projects:
• City meeting RHNA numbers;
• Specific adverse impact to public health and safety;
• Deny to comply with state or federal law;
• Proposed on agricultural land or water/sewer inadequate, OR • Inconsistent with Zoning Ordinance & GP land use designation; BUT must have a housing element in substantial conformance with state law, and not on a site designated in housing element for lower or moderate income housing.
• If housing element NOT compliant, cannot deny project no matter how inconsistent with zoning and general plan
5 Why Now?
• Enacted in 1982 as part of Housing Accountability
Act; but no published cases
• Many more cities not approved by HCD in sixth
cycle; much harder to be compliant
• Applies when Housing Element is not substantially
compliant with case law
• Publicized by UC Davis law professor; used in
Santa Monica; extensively publicized
6 The Effect of Preliminary
Applications
7 Preliminary Applications (“SB 330 Applications”)
“Preliminary application” freezes development
standards as of date all required info was submitted
• But project must meet these timelines:
• Project application must be filed within 180 days
• Applicant must complete application within 90 days of receiving incomplete letter (HCD: applicant may continue to resubmit)
• Can change project by up to 20% of square footage or
number of units or invoking density bonus and still rely on initial preliminary application
• Can be submitted for ANY housing project.
8 Other Key Processing Provisions
• Formal project application subject to Permit
Streamlining Act
• Must review for completeness within 30 days of each
submittal, or “deemed complete”
• Once complete, staff must notify applicant in short
time (30 or 60 days) if there are any
“inconsistencies” – or “deemed consistent” with all
City standards
• If “deemed consistent,” can probably not be denied for inconsistency
9 CEQA
If project requires discretionary
approval, CEQA still applies
• Many exemptions require general plan
and zoning conformance
• But not clear if general plan and zoning are
“applicable” to a “builder’s remedy” project
• Mitigation measures can be imposed
• But not if measures are “infeasible”
10 Density Bonuses
11 Density Bonus Law
• Eligible project: 5% to 100% affordable housing
• Eligible projects entitled to receive:
• A density bonus [20 – 100%, or unlimited];
• 1 – 5 “incentives / concessions” [reduce costs]
• Unlimited waivers of development standards
• Reduced parking requirements.
• Density Bonus project = consistent with City standards 12 Density Bonus Law and Builder’s Remedy
• Builder’s Remedy project with 20% affordable
housing is eligible for density bonuses
• Does not appear that projects submitted as
Builder’s Remedy projects can qualify as density
bonus projects because:
• Density more than 2X maximum density; or
• Density less than minimum density
13 Builder’s Remedy Legislation
AB 1886 and AB 1893
Effective January 1, 2025
14 Key Provisions
• Base density in Cupertino is greatest of:
• 45 du/acre
• 3x maximum density (90 du/acre if max density is 30
du/A)
• Density consistent with housing element
• Plus 35 du/acre in high opportunity areas
• At least 80 units/acre throughout Cupertino
• But no projects to date exceed this density
• May be doubled under density bonus law
15 Key Provisions
•Reduces required affordability to 7%, 10%, or 13%
depending on affordability; based only on base
density
•City cannot apply its BMR ordinance unless can
show that this will not make project infeasible
•Provides 2 additional density bonus concessions
16 Key Provisions
• Objective standards are those applicable to district
that allows density and type of building; if none,
developer may select standards
• BR projects are deemed to comply with City standards
• Developer may use SB 35 if complies with selected
standards (ministerial approval; no CEQA); but 50%
lower income
• Existing BR projects may elect to use new provisions
even if change by more than 20%; OR can continue to
use existing law
17 Builder’s Remedy Litigation
18 General Comments
• NO appellate published decisions
• All involve city as defendant
• AG has intervened
• HCD frequently submits declarations against
cities
19 Few City Successes
• Trial courts (all SoCal) have agreed with HCD on
housing element adequacy
• Have found requirement to apply for rezoning
or GP amendment to be an effective denial
• Agree that preliminary application freezes the
status of the housing element
• Split on whether HCD approval is needed for
adequacy
20 HCD and Attorney General Enforcement
• HCD Housing Accountability Unit with at least 25 staff • Broader and broader authority
• Letters of Technical Advice
• Notices of Violation
• Referral to Attorney General
• Attorney General has 12-person strike force that acts independently
21 Active Third-Party Litigants
•Have sued at least 10 SoCal cities and 12 Bay
Area cities (Californians for Homeownership,
YIMBY , California Housing Defense Fund) on
housing elements
•Often join in, or are plaintiffs, in litigation
related to denials of housing development
22 Housing Cases in General
•Courts:
• Generally very pro-housing
• Uphold housing approvals
• Overturn denials
•City risks:
• Significant attorneys fees exposure
• High defense costs
• Possible fines under new legislation
23 Thank You!
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