Legislation For CA Housing

AB 1398 (Chapter 358, Statutes of 2020) amended state housing element law regarding the consequences of adopting a housing element after the deadline. Recent press reports have discussed the "Builder’s Remedy," a provision that allows developers to bypass local zoning requirements if a locality's housing element does not substantially comply with state law. According to these reports, if a locality's housing element is noncompliant, the city or county must approve the housing development project regardless of local zoning regulations.

AB 1398 has removed the requirement for a four-year housing element once the Department of Housing and Community Development (HCD) determines that a community's sixth cycle housing element complies with state law (Government Code Section 65588(e)(4)(A)). Instead, state law now establishes deadlines for housing element adoption and rezoning, along with consequences for failing to meet those deadlines. Read more about it here .

The “Builder’s Remedy” and Housing Elements

Again, the "Builder’s Remedy" from the Housing Accountability Act (Government Code Section 65589.51) allows certain housing projects to bypass local zoning rules if a locality's housing element is noncompliant with state law. Under the HAA, cities and counties can only deny or impose conditions on projects for very low, low, or moderate-income households, or emergency shelters, if they make one of five specific findings:

1. The city or county has met its Regional Housing Needs Allocation (RHNA) for the relevant income categories.
2. The project would have an unmitigable adverse impact on public health and safety.
3. Denial or conditions are required by state or federal law, with no feasible alternative.
4. The project is on land zoned for agriculture or resource preservation, or lacks adequate water or sewage facilities.
5. The project is inconsistent with both the zoning ordinance and the general plan, unless the city or county lacks a compliant housing element.

If a locality lacks a compliant housing element, eligible projects can bypass local zoning and general plan inconsistencies under the "Builder’s Remedy."

Update: Proposed State Legislation Which Could Substantially Revise the Builder's Remedy in the Housing Accountability Act

AB 1893 would allow Non-Compliant Jurisdictions to deny Builder’s Remedy projects if they fail to meet new objective standards. These projects must:

1. Be in zones designated for housing, retail, office, or parking, or if agricultural, have at least 75% of the perimeter adjoining urban uses.
2. Not be on or adjacent to sites with more than one-third of the square footage dedicated to industrial use, unless the industrial use ended over three years ago or the site allows residential uses.
3. Not exceed specified residential density limits, based on the site's location and existing zoning laws.
4. Comply with local objective development standards for multi-family residential use at the allowed density, including any applicable density bonuses. If no such zone exists, the standards for the highest density zone in the jurisdiction apply.

Read More Here

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