Housing Element Non-Compliance Spurs Builder’s Remedy Projects

September 2023

By Justin A. Zucker

In 1969, the Legislature enacted California’s Housing Element Law.[1] Since then, local governments (cities and counties) must periodically adopt a housing element, which is a plan to accommodate their fair share of the “regional housing need” in their community.[2] In a two-step process, the California Department of Housing and Community Development (HCD) establishes the amount of housing at varying affordability levels for each locality. First, HCD establishes an amount needed for each region in the state. Second, the regional councils of governments apply a methodology to allocate the regional housing need to local governments.[3] The amount of housing each locality must plan for is known as its Regional Housing Needs Allocation (RHNA; pronounced ree-nah).

Housing elements must be updated every eight years, or five years for some rural areas.[4] Housing elements must identify and analyze existing and projected housing needs and include goals, policies, quantified objectives, financial resources, and programs for the preservation and development of housing.[5] California is in its sixth statewide housing element update cycle.

To be compliant, each of the 539 local jurisdictions in California must obtain certification of substantial compliance with its housing element from HCD. This means that HCD has completed its review of the jurisdiction’s adopted housing element and issued a review letter finding the element in compliance with the Housing Element Law. 

A local jurisdiction’s failure to adopt a substantially compliant housing element results in several repercussions. One is commonly known as the “builder’s remedy,” which was previously a little-known provision added to the Housing Accountability Act (HAA) in 1990.[6] The builder’s remedy removes a jurisdiction’s local control over certain low-income housing development projects, specifically those providing either 20% of the units as lower income (80% area mean income (AMI)) or 100% of the units as moderate income (120% AMI).[7]

A local jurisdiction without a compliant adopted housing element cannot use its general plan and zoning standards to reject builder’s remedy projects. Only if specific findings of adverse impacts to health or safety are found can a local jurisdiction apply local zoning development controls.

Up until the most recent housing element cycle, local jurisdictions have easily achieved compliance. Starting in 2017, a spate of legislative changes to the Housing Element Law, however, changed that paradigm. Compliance with the Housing Element Law became no longer a check-the-box exercise, resulting in numerous jurisdictions across the state failing to timely adopt a substantially compliant housing element during the sixth cycle. As of August 24, 2023, of California’s 539 jurisdictions, 198 had not adopted a substantially compliant housing element. Consequently, builder’s remedy projects have popped up across the state, including in the coastal towns of Santa Monica, Redondo Beach, and Claremont, and the ritzy Beverly Hills down south, as well as Mountain View, San Jose, Los Gatos, and San Rafael in the San Francisco Bay Area and Davis and beyond.

A case this summer tested whether a local jurisdiction could achieve certification of substantial compliance of its housing element by other means.[8] Californians for Homeownership v. City of La Canada Flintridge is the first trial court case this author is aware of addressing attempts by local jurisdictions to self-certify their own housing elements. In Californians for Homeownership, the court held the City of La Canada Flintridge failed to timely adopt a housing element and could not self-certify its housing element to avoid penalties like the builder’s remedy, which are intended to incentivize compliance.[9]

A mere 10 days after the Californians for Homeownership decision was published, a developer sued La Canada Flintridge for denying its builder’s remedy application in May 2023.[10] Four days later, a housing advocacy organization sued La Canada Flintridge for denial of the same project. How things play out in La Canada Flintridge and across California with respect to builder’s remedy projects is yet to be seen, but it will certainly be an interesting saga to pay attention to. 

Justin A. Zucker is on the Executive Committee of the Environmental Law Section of both the California Lawyer’s Association and the Bar Association of San Francisco. He is an attorney at Reuben, Junius & Rose, LLP, where his practice focuses on land use, environmental, and administrative law, concentrating on urban in-fill multi-family and mixed-use development. He is also Vice Chair of the Piedmont Planning Commission and Board Member of the Housing Action Coalition.

[1] Cal. Gov’t Code §§ 65580, et seq. (West 2023).
[2] Cal. Gov’t Code § 65584.01 (West 2023).
[3] Cal. Gov’t Code § 65584(d) (West 2023).
[4] Cal. Govt’ Code § 65588 (West 2023).
[5] Cal. Gov’t Code § 65583 (West 2023).
[6] S.B. 2011, 1990-1991 Reg., Legis. Sess. (Cal. 1990), now codified as Cal. Gov’t Code § 65589.5(d).
[7] Cal. Gov’t Code § 65595.5(d)(5) (West 2023).
[8] Californians for Homeownership v. City of La Canada Flintridge (LA Sup.Ct. July 11, 2023) Case No. 23STCP00699.
[9] Id. at *29.
[10] 600 Foothill Owner LP v. City of La Cañada Flintridge (LA Sup.Ct., filed July 21, 2023) Case No. 23STCP02575.