California is in the midst of the 6th Regional Housing Needs Allocation cycle known as RHNA, a state-mandated process that requires all cities and counties to timely update the housing elements of their general plans to plan for their fair share of California’s housing needs to people of all income levels. Many cities have failed to timely adopt an updated housing elements in substantial compliance with state housing element law and more are expected to follow, giving rise to the viable use of the colloquially-named “Builder’s Remedy” in the Housing Accountability Act.

Often referred to as the “HAA,” the Housing Accountability Act is a powerful 1982 housing production statute that has been amended some two dozen times to strengthen the law to address the legislature’s intent to significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects. Under subsection (d) of the Housing Accountability Act, a city or county may only lawfully disapprove a housing project where at least 20% of the units will be deed-restricted for sale or rent to lower-income households or where 100% of the units will be deed-restricted for sale or rent to moderate-income households by making one of five statutorily-enumerated findings:

(1) The jurisdiction has adopted a substantially-compliant housing element and the jurisdiction has met or exceeded its share of the regional housing need allocation for the planning period for the income category proposed for the housing development project.

(2) The housing development project as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.

(3) The denial of the housing development project or imposition of conditions is required in order to comply with specific state or federal law, and there is no feasible method to comply without rendering the development unaffordable.

(4) The housing development project is proposed on land zoned for agriculture or resource preservation that is surrounded on at least two sides by land being used for agricultural or resource preservation purposes or that lacks adequate water or wastewater facilities to serve the project.

(5) The housing development project is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation as specified in any element of the general plan as it existed on the date the application was deemed complete and the jurisdiction has adopted a housing element in substantial compliance with state housing element law.

The Builder’s Remedy resides in and is the negative implication of finding number 5 above. In other words, if a jurisdiction has not adopted a substantially compliant housing element by its established due date, then the jurisdiction may not lawfully disapprove a housing development project containing at least 20% lower-income housing or 100% moderate-income housing.

Notably, in the Southern California Association of Government’s jurisdiction, the eight-year planning period covers October 2021 to October 2029 and compliant housing elements were due by October 15, 2021. And in the Association of Bay Area Government’s jurisdiction, the eight-year planning period covers January 2023 to January 2031 and compliant housing elements are due by January 31, 2023. There is no grace period even if a jurisdiction’s housing element is under review by the California Department of Housing and Community Development.

Although there is no specific exemption from the California Environmental Quality Act for such projects and there are many outstanding questions, a jurisdiction faced with a Builder’s Remedy project will ultimately be required to approve it.