For the last two years the 鈥渂uilder鈥檚 remedy鈥� has been the unruly teenager of California housing laws.
Running roughshod over zoning regulations while sowing angst among local elected officials, the law lets developers build as much as they like, wherever they like, in cities and counties that have blown past deadlines to get their housing development blueprints .
Despite its use as a , no project has broken ground, much less finished, as a result of the builder鈥檚 remedy. That鈥檚 partially because relatively few developers are willing to make use of the confusingly-worded law for lack of legal certainty.
Now, some of California鈥檚 most powerful Democratic lawmakers are pushing legislation that would clear up, but also rein in, the state鈥檚 most controversial housing statute. Nearly a year and a half since a developer first used the law to propose a , 2024 may be the year that the builder鈥檚 remedy grows up.
鈥淭he 鈥榖uilder鈥檚 remedy鈥� has sort of lived in the Twitterverse, but actually making it a clear law, so that everyone is following the same rules of engagement and we know what the rules are鈥�(that) is really what we鈥檙e aiming to do here,鈥� said Assemblymember , a Berkeley Democrat, who chairs the Assembly appropriations committee and who authored .
The proposed overhaul, outlined in a newly amended draft of the bill published this morning, includes new perks for developers, textual edits to clear up how the law would apply and a provision to let developers who make use of other state laws to make use of builder鈥檚 remedy guarantees too.
But the bill would also put a cap on how big builder鈥檚 remedy projects can be, while prohibiting its use in industrial zoned areas. That鈥檚 a break from current law, in which the sky 鈥� and the California Building Code 鈥� is the limit.
鈥淲e tried to land this bill in a place where it is a stick 鈥� it鈥檚 holding our cities accountable 鈥� but it鈥檚 not overreaching in its scope,鈥� said Wicks.
Wicks鈥� bill is backed by Attorney General Rob Bonta, who has ramped up the state Department of Justice鈥檚 since coming into office in 2021.
鈥淚t has been over 30 years since the builder鈥檚 remedy was enacted and it鈥檚 remained in effect, largely unchanged, since then,鈥� Bonta said in a statement. The bill is meant to provide clarity to 鈥渓ocal governments, planners, developers, and courts,鈥� he added, while also ensuring that housing actually gets built in cities and counties that don鈥檛 have certified housing elements, rather than getting stuck in legal limbo.
This is one of at least two bills aimed at tying up the builder鈥檚 remedy鈥檚 perceived loose ends.
by San Diego Assemblymember , a Democrat, would specify that jurisdictions without state certified housing plans would be subject to the builder鈥檚 remedy until those plans are passed by local officials and department. That鈥檚 a response to cities that have argued that the
Does the builder鈥檚 remedy need fixing?
The builder鈥檚 remedy has been on the books for more than three decades, but was by pro-housing legal scholars and state housing regulators.
As cities and counties have that Gov. Gavin Newsom wants built across California by the end of the decade, the builder鈥檚 remedy 鈥� which spells a total loss of local control over land use 鈥� has been among the most menacing possible consequences of non-compliance.
It鈥檚 also been a reliable path to litigation.
Though the state doesn鈥檛 gather data on builder鈥檚 remedy projects, the pro-housing legal advocacy group YIMBY Law has identified 93 projects with roughly 17,000 potential units spread across 40 mostly affluent California cities. Jurisdictions have refused to process nearly half of these applications, arguing that the law doesn鈥檛 actually apply, that it鈥檚 been misinterpreted or that the law itself is unconstitutional. Eight of the projects are the subject of current lawsuits. Few, if any, builder鈥檚 remedy projects have actually resulted in new housing 鈥� yet.
Defenders of the current law say that isn鈥檛 surprising: Large residential developments take years to complete and the current legal ambiguities in the newly unearthed law are being ironed out by .
鈥淭he builders remedy is already a very successful program at motivating cities to get in compliance with the housing element law and in generating applications for housing that would otherwise not be possible in the highest income, highest opportunity places in California,鈥� said Sonja Trauss, YIMBY Law鈥檚 founder. The group has not taken a position on Wicks鈥� bill.
Though all builder鈥檚 remedy projects remain on paper, the law has taken on an outsized significance in the politics of California housing over the last 15 months.
For 鈥淵es In My Backyard鈥� activists who blame development-averse local governments for the state鈥檚 housing shortage, the builder鈥檚 remedy has been as the policy equivalent of the .
For opponents, the builder鈥檚 remedy is the most extreme logical conclusion of the state鈥檚 .
Jen Wolosin is a Menlo Park city council member whose district includes the former headquarters of Sunset Magazine, now the with three and 805 housing units. The tallest would reach 421 feet. Nothing is moving forward just yet. The builder鈥檚 remedy application simply holds the project鈥檚 place in the permitting queue. Even so, Wolosin, who was endorsed in her 2020 election by Peninsula for Everyone, a local YIMBY group, called the proposal 鈥渏aw dropping鈥� and 鈥渙utrageous鈥� in its scale relative to the surrounding low-lying neighborhood.
鈥淚 don鈥檛 like seeing cities flout state law and exacerbate the housing crisis,鈥� she said. 鈥淭hat offends me.鈥�
But, she added, in lacking all 鈥済uardrails,鈥� the builder鈥檚 remedy 鈥渃an turn off people who would otherwise want to help solve the housing crisis.鈥�
A sizable chunk of California municipalities are still legally vulnerable to the 鈥渞emedy.鈥� At last count, nearly 40% of cities and counties have failed to have their .
Legal gray areas hold back widespread adoption
Wicks鈥� bill would add some of those guardrails.
The bill would cap projects at two or three times the current zoned density, depending on the neighborhood. That doesn鈥檛 include whatever add-ons are allowed under the state鈥檚 density bonus law, which gives developers added height and density in exchange for building affordable units. The bill would also allow cities to impose 鈥渙bjective鈥� standards of development, including architectural style requirements, if they already apply to other dense multifamily areas and aren鈥檛 prohibitively expensive to abide by.
鈥淭his is just a crazy-making provision of the law.鈥滳HRIS ELMENDORF, LAW PROFESSOR, UC DAVIS
Putting restrictions on the builder鈥檚 remedy may seem an ideological 180 for Wicks and Bonta, both of whom have allied themselves with YIMBY activists. Even so, the bill has received outright support or optimistic neutrality from many of the state鈥檚 pro-housing organizations. Leaders of California Community Builders and Habitat for Humanity California are attending a press conference in Sacramento today where Bonta and Wicks will unveil the latest version of the bill.
鈥淧art of why the YIMBY movement emerged was to have a clear process in place to have homes actually being built and if you鈥檙e going to have to end up in court all the time, that鈥檚 not really ideal,鈥� said Matthew Lewis, a spokesperson for the state advocacy group, California YIMBY.
The group does not yet support the bill, but Lewis said it agrees with Wicks鈥� general intent. 鈥淭he builder鈥檚 remedy is fantastic, we love it, it鈥檚 one of the most popular things among YIMBYs. But with the big asterisk 鈥� not if a city decides to sue you all the time.鈥�
Supporters of the legislation say it will resolve two problems that are currently slowing the law down.
The first is legal. As written, the builder鈥檚 remedy includes that seem to simultaneously allow developers an unlimited amount of density while also empowering local governments to apply their own standards. Both of those things can鈥檛 be true at the same time.
鈥淭his is just a crazy-making provision of the law,鈥� said Chris Elmendorf, a UC Davis law professor who has done more than anyone to .
Setting explicit numeric limits on what is allowed could make it more difficult for opponents to argue that a builder鈥檚 remedy project isn鈥檛 consistent with the law.
Converting the builder鈥檚 remedy from a supersized bargaining chip in an open-ended negotiation into a policy that 鈥渁nyone with a calculator can figure out鈥� would likely encourage more traditional developers to make use of it, said Dave Rand, a land-use attorney who represents many builder鈥檚 remedy projects.
In a perk for developers, the bill would also reduce the number of affordable units that builder鈥檚 remedy projects are required to provide. Currently developers have to set aside at least 20% of the units for lower income renters or buyers. The bill would cut that number to 10% while exempting projects of 10 units or fewer from any affordability requirement.
A credible housing threat
Keeping developers from proposing supersized 鈥渃ompletely preposterous鈥� developments could also help limit the political backlash to the law, said Louis Mirante, a lobbyist with the Bay Area Council, which regularly backs legislation to speed up housing construction. 鈥淟egislators are worried about maintaining the credibility of housing laws to their housing skeptical colleagues.鈥�
The proposal is likely to face plenty of skepticism regardless. The bill is scheduled to go before the Assembly鈥檚 Housing and Community Development committee on April 17.
As negotiations continue over future amendments continue, pro-development lawmakers and lobbyists will need to come to a shared conceptual understanding of what the builder鈥檚 remedy is actually for, Elmendorf said.
For cities that failed to get their housing plans enacted on time, the builder鈥檚 remedy has been seen as a 鈥減unishment,鈥� he said.
This new bill could represent a different way of thinking about the law, one that doesn鈥檛 unleash unmitigated chaos on a city鈥檚 planning department, Elmendorf said, but kicks in 鈥渁s a default statewide zoning code that applies when cities haven鈥檛 come up with a good enough alternative on their own.鈥�
is a nonprofit, nonpartisan media venture explaining California policies and politics.