Image: Redco Development and Midar Investment want to employ the state builder’s remedy to build three buildings with nearly 400 apartments at 156 California Avenue in Palo Alto. (Redco Development)

Two recent housing element laws moving through the state legislature clarified and changed the Builder’s Remedy, which could impact cities in Santa Clara County. Builder’s Remedy, a controversial exemption from local zoning constraints for projects with a specific percentage of deed-restricted affordable housing, is the most talked-about consequence of housing element noncompliance. Here in the South Bay, Builder’s Remedy developments have been proposed in multiple jurisdictions, but with uncertainty about when the provision applies, some cities have resisted processing these applications. 

AB1893 guarantees legal protections for projects proposed under the Builder’s Remedy in exchange for limits on density in jurisdictions that are out of housing element compliance. Specifically, AB 1893: 

• Requires local governments to process Builder’s Remedy applications through the same process as normal, zoning-compliant developments, meaning that local governments may not require rezoning or general plan amendments or impose additional fees. 
• Strengthens the Housing Accountability Act by adding stricter statutory timelines for reviewing an application and limiting the number of public meetings a city may hold regarding Builder’s Remedy proposals. 
• Changes Builder’s Remedy maximum densities from unlimited density to the maximum density within the city, or up to 65 du/ac, whichever is higher. Builder’s Remedy projects can still be proposed throughout most of a city, except on sites abutting heavy industrial uses. 
• Builder’s Remedy proposals submitted before the end of 2024 will have a choice between existing Builder’s Remedy rules–which allow unlimited density but have fewer protections–and AB 1893’s provisions.

 AB 1886 clarifies that jurisdictions are not in compliance with housing element law until their housing element is certified by the California Department of Housing & Community Development (HCD) and are subject to Builder’s Remedy if they remain uncertified once the deadline for certification has passed. 

In Santa Clara County, only the housing element for the County’s unincorporated land remains uncertified. These areas include a high proportion of agricultural land, open space, and land in the wildland-urban interface, which is often more prone to fire. Unincorporated land is often also farther from job centers, and sprawl development in these areas can generate excessive vehicle miles traveled (and therefore more greenhouse gas emissions) and are a fiscal drain for cities to provide services to. Many of the current Builder’s Remedy projects on unincorporated County land promote unsustainable sprawl. The County’s housing element must be brought into compliance as quickly as possible to avoid further undesirable Builder’s Remedy proposals.