The Department of Housing & Communty Development has signed off on Beverly Hills’ housing element, possibly ending one of the most contentious housing element disputes in the state.
HCD has also signed off on the housing element for the Town of Los Gatos but is still negotiating with Claremont over its housing element, meaning – as in Beverly Hills – builder’s remedy projects could hang in the balance.
The Beverly Hills approval is further evidence that contentiousness between cities around the state and HCD is subsiding now that most housing elements resulting from the 6th Cycle Regional Housing Needs Assessment have been approved. According to HCD’s housing data portal, 339 of 400 adopted housing elements in the 6th cycle have been cleared by the department as being in compliant. Some 61 adopted housing elements are out of compliance while 67, including Claremont, are involved in having subsequent drafts reviewed. The remainder are having the initial drafts reviewed or have already moved on to the 7th Cycle.
Get up to speed on RHNA and Housing Elements by taking Bill Fulton’s one-hour course, eligible for AICP CM Law credit. You can also take a one-hour course on exactions on the recent U.S. Supreme Court case! Check out both courses here.
Housing Element approval is especially important this time around because so many developers are now pursuing builder’s remedy projects in cities that have not had compliant housing elements. Although many builder’s remedy projects may yet be built, the whole builder’s remedy issue may turn out to be a temporary window that allowed some projects to slip through while housing elements were pending in various cities. In the La Cañada Flintridge case and other lawsuits, cities have challenged the idea that HCD approval is required for a housing element to be compliant, but there is little doubt that local approval and HCD approval means that a housing element is compliant for sure.
Barely ever used before 2022, the builder’s remedy is a provision of state law that requires cities and counties to approve almost any project a developer proposes if the city’s housing element is out of compliance. In an attempt to put some guardrails on the builder’s remedy, pro-housing Assemblymember Buffy Wicks introduced AB 1893, which would limit density to double or triple of that allowed in local zoning and put other limitations on builder’s remedy. The bill has passed the Assembly Housing and Community Development and Local Government committees. (CP&DR’s previous coverage of AB 1893 can be found here.)
The housing element issue was especially explosive in Beverly Hills, where developer Leo Pustilnikov has filed several builder’s remedy applications. But it was Californians For Homeownership, the legal arm of the California Association of Realtors, that really got Beverly Hills’ attention by suing to challenge the city’s adopted housing element, claiming that the city’s mixed-use zone on commercial stripes allowed but did not require affordable housing. Los Angeles County Superior Court Judge Curtis Kin – the same judge who later declared SB 9 unconstitutional, at least for charter cities – first ruled against the city and then issued an order suspending the city’s permitting power, a ruling that the city was in the process of appealing. (CP&DR’s previous coverage of Kin’s ruling against the city can be found here and coverage of his decision to suspending permitting can be found here.)
The builder’s remedy was included in state law in 1990 but lay dormant until 2022, when a developer filed more than a dozen builder’s remedy applications with Santa Monica before the city’s housing element was approved. The viability of the builder’s remedy emerged during the 6th Cycle RHNA housing element review, when more cities struggled to comply with vastly increased housing targets, at least in the Los Angeles region and the Bay Area.
In any event, it seems likely that the window on builder’s remedy applications is closing in many cities as HCD signs off on more housing elements. The Beverly Hills and Los Gatos approvals are only the latest of many recent approvals on HCD’s part. According to HCD’s housing data portal, the city is currently actively reviewing only 58 of the state’s 539 housing elements, as most of them have already passed HCD’s muster.
Indeed, HCD’s data shows most housing elements have been approved in the contentious coastal regions, to wit:
-- Only 26% of housing element in Los Angeles County have not received HCD’s approval (though that figure is 31% in Orange County.
-- In the Bay Area, less than 30% of housing elements have not yet received HCD’s here approval – though almost half of housing elements in recalcitrant San Mateo County remain outstanding. (HCD recently revoked Portola Valley’s approval because the city was not moving forward quickly on multifamily zoning, but the city says approval is forthcoming soon. Previous CP&DR coverage can be found here.)
-- In the Sacramento Area Council of Governments region, only Live Oak remains out of compliance.
-- And in the San Diego region, only Coronado remains technically out of compliance, though the city – which has been resistant – recently reached a legal settlement with the Attorney General’s Office. (CP&DR’s coverage of the Coronado settlemnt can be found here.)
Get up to speed on RHNA and Housing Elements by taking Bill Fulton’s one-hour course, eligible for AICP CM Law credit. You can also take a one-hour course on exactions on the recent U.S. Supreme Court case! Check out both courses here.
