Builder's Remedy

What is Builder's Remedy?

Government Code section 65589.5(d)(5), known as the "Builder's Remedy," is a provision of California's Housing Accountability Act (HAA) that allows developers to bypass local zoning laws and build certain housing projects, even if those projects do not comply with the City Zoning Ordinance or General Plan.  A memorandum to City Council (PDF) with a project update is available for review.  

How Does the “Builder’s Remedy” Work? 

The HAA requires that cities and counties make one of five findings to deny, or to apply conditions that make infeasible, a housing development project “for very low, low- or moderate-income households” or an emergency shelter.  

The five findings which would allow denial of an eligible project can be summarized as follows: 

  1. The city or county has met or exceeded its Regional Housing Needs Allocation (RHNA) for the proposed income categories in the development. 
  2. The housing development or emergency shelter would have a specific adverse impact on public health and safety, and there is no way to mitigate or avoid the impact without making the development unaffordable. The impact must be based on objective, written public health or safety standards in place when the application was deemed complete. 
  3. The denial or condition is required to meet state or federal law, and there is no feasible method to comply without making the development unaffordable. 
  4. The project is proposed on land zoned for agriculture or resource preservation that is surrounded on at least two sides by land being used for agriculture or resource preservation or there are not adequate water or sewage facilities to the serve the project.  
  5. The project is inconsistent with both the zoning ordinance and the land use designation as specified in any general plan element. However, a city or county cannot make this finding if it has not adopted a housing element in substantial compliance with state law.  

If a locality has not adopted a housing element in substantial compliance with state law, developers may propose eligible housing development projects that do not comply with either the zoning or the general plan.   The City has adopted a housing element in compliance with State law, however, the Element has not yet received certification from the State Department of Housing and Community Development.  Certification is required to be designated as "in compliance". 

What type of projects can Builder's Remedy be used for?  

The Builders Remedy is only available for residential projects that meet the Housing Accountability Act's definition of a "Housing Development Project," which is limited to developments consisting of one of the following:

  • Residential units only.
  • Mixed-use developments consisting of residential and nonresidential uses with at least two-thirds of the square footage designated for residential use.
  • Transitional housing or supportive housing.

The Builder's Remedy is not available for entirely commercial or non-residential projects.

The Builder’s Remedy is further limited to projects that meet specific affordability thresholds. In order to qualify, a project must include:

  • Twenty percent of the total units sold or rented to lower-income households;
  • One-hundred percent of the units sold or rented to moderate-income households; or
  • The project must be an emergency shelter.