Avoiding the ‘builder’s remedy’
Recent reporting from across the state is highlighting the pressure local cities are under to have their Housing Elements approved by Jan. 31, 2023 in order to avoid falling into non-compliance and becoming vulnerable to what’s known as “builder’s remedy” — a situation where developers are allowed to build any housing at any height or density as long as 20% of the units are affordable housing.
(See LA Times reporting from Oct. 24 “Thousands of apartments may come to Santa Monica, other wealthy cities under little-known law” and this news from real estate news site RealDeal on Oct. 13 “Santa Monica’s failed housing plan sparks building boom” )
“The builder’s remedy is real and something we are playing close attention to,” said City Administrator Sara Lillevand on Tuesday. She said the city is on track to bring forward a new Draft Housing Element to the Council by mid-November. The urgency to move ahead became clear in recent weeks when the city’s planning department met with California Housing reviewers on Monday, Oct. 17 to confirm Housing Element adoption deadlines and consequences for non-compliance.
The official State deadline for cities to adopt a compliant Housing Element is January 31, 2023, with an automatic 120-day grace period. HCD [California Department of Housing and Community Development] staff recently clarified that while the 120-day grace period remains in place with respect to timelines for enacting proposed policies and programs related to zoning, the grace period would not apply to other consequences of non-compliance including becoming ineligible for certain grant funding and the process known as the “builder’s remedy,” which limits a city’s ability to deny applications for new development while its Housing Element is out of compliance.
There’s no set date yet for bringing the revised Draft Housing Element before the Council, but Lillevand says she expects to share more a more definitive timetable next week.
Responding to the RHNA
The City of Piedmont, which has been prepping for the latest Housing Element since 2020, received its RHNA allocation number — 587 housing units — in January 2021. Since then, the city has held 29 events — City Council meetings, open house presentations, Planning Commission meetings, online survey or other outreach efforts — to gather or share information and to seek input on how Piedmont could accommodate and facilitate development of these units.
Piedmont and other small cities have had to think creatively to identify potential sites for new housing, resulting in situations like the ones outlined in this Oct. 24 SF Chronicle article: “Why bother with a real map?’: Here are the dubious sites NIMBY Bay Area cities propose for housing” . But the Chronicle reporter’s assertion that “some wealthy cities that are opposed to building far more housing — or are simply resigned to failing — have offered up outlandish or logistically impossible sites in their blueprints to accommodate future homes” belies that fact that Piedmont has engaged in a years-long, serious effort to accommodate the need for housing, one which has resulted in the development of ADUs throughout the city and multi-unit development on Linda Avenue.
Consideration of City Hall and other Civic Center buildings for housing was evaluated and ultimately scaled back this summer due to concerns about traffic, safety and heavy civic demands. The only current consideration of city-owned Civic Center sites is for 18 units that could be accommodated at 801 Magnolia.
“As mayor, I’m not going to tell our city attorney to try to fight these allocations, because we would lose and we would have to spend a quarter of a million or more of general fund dollars to try to scoot around the housing mandates,” King said. “That’s totally irresponsible. And it’s a lousy way to behave in the greater Bay Area.”
Piedmont Mayor Teddy Gray King in SF Chronicle, Oct. 24
Housing debate a factor in City Council race
A city’s Housing Element is not optional and is required by state law. Two incumbent Council members up for election this year — Betsy Smegal Andersen and Jen Long — along with candidate Tom Ramsey, have all said complying with the state’s laws around the Housing Element is important because it protects the city’s right to manage where and how new housing is built.
However, two candidates running for City Council, Bridget Harris and Jeanne Solnordal, are running on platforms that challenge the city’s approach to complying with the state’s housing mandate. In Exedra questionnaires given to all candidates in September, Solnordal says Piedmont should have appealed its RHNA allocation, and in a mailer sent to residents she highlights “opposing the state” as a top Housing Element issue. (Her flier also incorrectly states that the 587 units are “affordable housing.” The allocation consists of 257 affordable low and very low income, 92 moderate income, and 238 above moderate income units per the city’s fact sheet HERE. )
In the Exedra questionnaire, Harris says residents should have the right to vote “even if it means delaying submission of a draft plan,” a position that she emphasizes again in a mailer to residents this week that says, “We can and should delay submission of any plan until Piedmont understands and votes on options.” Her interpretation of the City Charter lies at the core of her belief that Piedmonters would need to vote on any modification of use within a zone (i.e., adding homes to city-owned land in Moraga Canyon). It is, however, at odds with the City Attorney’s position. HCD has also advised the city that a Housing Element contingent on voter approval would be deemed inherently out of compliance and would be rejected.
The City Attorney has outlined the legal analysis regarding this question of “voting” in a City Charter fact sheet HERE. It says “The City Charter requires voter approval to change zoning district boundaries or move properties between zones. The Charter does not require a vote to modify uses and densities in an existing zone without changing boundaries. This analysis makes clear that a vote of the electorate is only required to alter the size and boundaries of existing zones, not to modifying uses within a zone.”
Once Piedmont adopts a Housing Element, the city says it will have three years of public meetings to work through any of the regulatory changes proposed in the Housing Element.
Regardless of election results, the urgency remains. Piedmont must move the Housing Element forward or risk serious consequences.
(This article is based on a compilation of past and current Exedra reporting by our editorial staff and city reporter Sam Richards, regional reporting, candidate statements, and city information. You can read all the Exedra’s reporting on the Housing Element dating back to 2019 by searching “housing” on our site. Spot an error? Let us know at news@piedmontexedra.com)
Thank you for publishing this piece. There’s so much confusion and misinformation in our town about what power we have as voters and as a city. I hope every resident who cares about planning for the future of Piedmont reads this concise and factual article, so we can move forward on what we need to do as a city to avoid losing our local control to the State.
The editorial is helpful but could provide a great deal more information. One element would be a link to the city’ charter, a link also left out of city fact sheets as well;
https://cdn5-hosted.civiclive.com/UserFiles/Servers/Server_13659739/File/Government/City%20Charter%20&%20Code/charter.pdf?v=GnHB6UwnG&v=GnHB6UwnG
Section 9.01 references the General Plan, the overarching planning document for Piedmont. It would help community discussion for the City to explain how the Housing Element fits within the context of the General Plan.
Minor point – the graphic for this piece is incorrect. All new housing, affordable and otherwise, is distributed to the City’s perimeter, not the Civic Center as depicted. Not very equitable.
The editorial states that there is an urgency for Piedmont to “move the Housing Element forward”. While this is correct, there is a general community misperception on what “forward” means. This means, first, that City must ADOPT the Housing Element by January 31, 2023. It’s irrelevant to the builder’s remedy kicking in on whether the City has sent the Housing Element to the State for review. Furthermore, the builder’s remedy is just one among the litany of problems that will ensue as a result of an inadequate General Plan if the element is not adopted. Yes, the City must continue seeking State certification, but that is not a substitute to adopting the element by the State deadline.
Everyone who wants a vote on this has a valid point. Yes, the Charter requires it. However, we are out of time to vote on this. State laws trump City charter and the builder’s remedy and other consequences will come into play whether the Charter demands a vote. Dragging the adoption out past the deadline or pushing for vote prior to adoption or fighting the State will just result in bad consequences for the City.
Perhaps there can be vote on this post adoption. However, just a no vote that results in the City not meeting its housing obligations is not going to stand up in court. The vote will be meaningful only if the voters select from a menu of different choices that still result in the City meeting its RHNA need.
A simple reading of the charter and even the city’s latest “analysis” says two acts of rezoning trigger a vote: “reduce/enlarge” and “reclassify”. That should be clear. Unfortunately the city analysis provides no legal basis for its assertions.
Voters should read carefully the city’s interpretation in #1 of the analysis – the city can amend use within a zone without a vote. That sidesteps the charter all together and gives city council the power to change the private single-family zone to multi-family if Council chooses to. One of the first acts of the new Housing Element is to undertake a study of the impediments the charter and single-family zoning present to affordable housing, perhaps a prelude to changing the density of the singe family zone in time for the next housing cycle.
Many residents support affordable housing but also good governance.
Thank you for this clear, well-researched, and well-supported article.