Sonoma, Los Altos Hills Reject Builder's Remedy Proposals
- Josh Stephens
- Mar 21, 2023
- 4 min read
For all the jurisdictions in California that are upset about the invocation, or potential invocation, of the now-notorious "builder's remedy" provision of the Housing Accountability Act, the City of Huntington Beach has protested most emphatically. In its shadow, however, are several cities that appear no less determined to retain local control and oppose proposed housing projects to which they object. Whereas Huntington Beach is actively suing the state to exempt itself from the builder's remedy (and other housing laws), the Town of Los Altos Hills and the City of Sonoma are relying on technicalities to essentially wish their housing elements into compliance and therefore assert that the builder's remedy is moot. Both jurisdictions are part of the Association of Bay Area Governments region, whose deadline for certification and adoption of housing elements was January 31. Sonoma has thus far blocked the builder's remedy application for The Montaldo, a multifamily development slated for a two-acre site that currently contains only a single-family house. The Montaldo was previously proposed for 55 units. The builder's remedy version calls for 64 units, all of which would be designated for middle-income residents. But Sonoma gave two different reasons why the builder’s remedy application should be rejected. According to a statement from Sonoma planner Alaina Lipp, the application for the larger version of The Montaldo, submitted February 6, was deficient. "The Planning Department evaluated the SB 330 preliminary application against statutory requirements and the City’s checklist and found that several elements were missing from the preliminary application package," said Lipp. "The Planning Department did a courtesy review and notified the applicant that an SB 330-compliant preliminary application had not been submitted due to the missing elements." City spokesperson Sarah Tracy said, though, that the city's housing element is in fact compliant -- meaning that a builder's remedy application would be moot, regardless of how complete or incomplete it is. The city's position is based not on HCD approval but rather on what amounts to "self-certification." "The City of Sonoma approved its 6th Cycle Housing Element as required by the State on January 31st and is prepared to maintain that its housing element is substantially compliant, and that California Dept. of Housing and Community Development certification is not required for a housing element to be found substantially compliant with state law," wrote Tracy in an email to CP&DR. "State law provides that a city may adopt its own findings explaining why its housing element is substantially compliant with state law (Section 65585(f))." HCD's database of housing elements lists Sonoma's as "under review." Officials from HCD have rejected the notion of self-certification. A March 16 memo by HCD Deputy Director Megan Kirkeby suggests that the adoption of a housing element that HCD has not explicitly approved is, essentially, a pointless exercise. Kirkeby's memo states, "a jurisdiction does not have the authority to determine that an adopted element is in substantial compliance by may provide reasoning why HCD should make a finding of substantial compliance... HDC recommends that a jurisdiction adopt only after receiving a letter from HDC finding the draft meets statutory requirements." Los Altos Hills is taking a similar approach. It faced builder's remedy applications for three relatively small projects (including one project with two variants) and determined that all four applications were "incomplete." In a recent online town hall meeting, the city attorney explained that, despite being considered out of compliance by HCD, he believes the recent draft of the housing element submitted to HCD satisfies the department's comments on a previous draft and will be found in compliance and certified, thereby retroactively exempting the city from the builder's remedy. "The Los Altos Hills Housing Element not only addresses all of the required components under state housing element law, and incorporates and addresses all of HCD’s findings received, it also addresses issues raised by the public during the public review period," wrote Mayor Linda Swan in a recently published opinion piece. Swan cites several programs designed to satisfy HCD's housing element requirements, including the town's first multi-family overlay zone; support for accessory dwelling units and SB 9 units (such as duplexes); and several measures to streamline housing approvals. A press release dated March 15 touts the town's promotion of housing in the 5th RHNA cycle (the previous cycle), in which it permitted 241 units, compared to its RHNA requirement of 121. According to the press release, "the accomplishment demonstrates the Town’s commitment to addressing the critical housing shortage in California and providing more affordable housing opportunities for its residents." Ultimately, however, jurisdictions' self-satisfaction may not shield them form legal action. In collaboration with HCD, Attorney General Rob Bonta has indicated that he is willing to sue willfully noncompliant jurisdictions. He recently announced a suit against Huntington Beach and has threatened to file more. This is in addition to suits filed by nonprofit and advocacy groups. (Previous CP&DR coverage of the Huntington Beach situation can be found here.) "Sonoma and Los Altos Hills are almost definitely breaking the law, as certified by HCD," said Matthew Lewis, spokesperson for California YIMBY. "I think these smaller towns think they can get away with it and are daring the attorney general to sue them."
