California Attorney General Rob Bonta is sponsoring a bill by Assembly Member Buffy Wicks that would set clear standards for the types of projects allowed under the builder’s remedy.
Top California officials have announced their newest plan to build more housing in areas that have lost local control over development. But it’s not the draconian slap to the face many NIMBY cities were likely expecting.
Instead, on Tuesday, Assembly Member Buffy Wicks, D-Oakland, introduced a bill sponsored by Attorney General Rob Bonta that extends an olive branch of sorts to local governments that have complained the state is threatening to unfairly punish them for not building enough housing.
The bill, AB1893, doubles down on the controversial “builder’s remedy” — a long-untested provision of California law that allows developers to bypass local zoning and design restrictions in jurisdictions without state-approved housing plans, as long as their projects contain a certain percentage of affordable units. This has led to some eye-catching and headline-grabbing proposals, such as a 50-story skyscraper in San Francisco’s Sunset neighborhood just a few blocks from the ocean.
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The fear provoked by such extravagantly excessive proposals was arguably the point of the builder’s remedy: to avoid opening themselves up to these extreme projects, even local governments notoriously averse to building new housing would be incentivized to do their part to plan for their share of the 2.5 million new homes California needs by 2031.
In this context, a bill to improve the efficacy of the builder’s remedy might not sound like much of a peace offering. But AB1893 is just that.
It calls for a more thoughtful and tailored approach to the builder’s remedy — a sign that California’s housing wars may be entering a new, more collaborative chapter.
Instead of the current punitive “almost anything goes” mentality, the bill would set clear standards for the types of projects allowed under the builder’s remedy.
It would limit the size of builder’s remedy projects to triple the current permissible density in high-resource areas — such as urban, amenity-rich neighborhoods located near public transit — and double the current density elsewhere. It would also lower the percentage of affordable units required in mixed-income projects from 20% to 10%, and exempt developments with 10 or fewer units from these requirements altogether — changes that bill proponents say would make it easier for projects to pencil and for smaller developers to compete while also facilitating the construction of small- to medium-sized multifamily housing. And among other technical changes, the bill would prohibit development on industrial and industrial-adjacent sites and expedite application processing times.
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The point of the bill, officials in Bonta’s office told me, is to provide clarity at a time when aspects of the builder’s remedy still remain up in the air, confusing cities and courts, causing wasteful litigation and ultimately delaying the construction of much-needed housing.
The builder’s remedy itself got a big legal boost in March, when a Los Angeles County superior court judge ordered the wealthy city of La Cañada Flintridge to process a project application that had been filed under the builder’s remedy — siding with Bonta and Gov. Gavin Newsom’s housing department, which intervened in the case. La Cañada Flintridge had previously denied the project, arguing, absurdly, that it wasn’t subject to the builder’s remedy because it had approved its own housing plan and because California’s fair housing law aimed at desegregating historically exclusionary neighborhoods was unconstitutional due to the U.S. Supreme Court striking down affirmative action in college admissions.
Yet while the ruling helped put the builder’s remedy on stronger legal footing, the lack of firm guidelines for permissible projects has given local governments license to drag their feet on permit approvals. According to Bonta’s office, developers have submitted dozens of builder’s remedy applications in the past year, but many jurisdictions haven’t been processing them “in a timely fashion.”
“We are finally updating this important provision to be clearer for local governments, planners, developers and courts, while ensuring that even cities without up-to-date housing plans continue to develop desperately needed housing that is affordable to middle-class and lower-income Californians,” Bonta said in a statement.
What exactly the bill could mean for the Bay Area remains unclear; the devil will be in the details, many of which will be worked out through the legislative process. For instance, it’s unclear whether the infamous Sunset skyscraper would be permissible if the bill is signed into law — a Bonta spokesperson said the office was unable to comment due to an ongoing lawsuit over the proposal.
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That the bill even attempts a conciliatory approach is a telling indicator, particularly for San Francisco, where housing is increasingly viewed through an all-or-nothing lens, as underscored by the hubbub following the Board of Supervisors’ decision to overturn Mayor London Breed’s veto of a bill to reimpose density limits along San Francisco’s northern waterfront.
Bonta and Wicks’ bill acknowledges that while fear is a remarkably effective motivator in getting local governments to do things they don’t want to do, in the long run it’s more fruitful to get their buy-in.
Local governments should take this carrot for what it is and engage with the state in good faith, because if they don’t, the state still has plenty of sticks at its disposal. On Jan. 1, Bonta — who’s increasingly making housing a central tenet of his platform as he seriously considers a run for governor — gained the unconditional right to enter any lawsuit filed over a potential housing law violation. Bonta is also sponsoring another bill authored by state Sen. Scott Wiener, D-San Francisco, that would expand the attorney general’s ability to seek civil penalties from jurisdictions that flout state housing law.
But — especially with this new peace offering — it shouldn’t come to that.
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Reach Emily Hoeven: emily.hoeven@sfchronicle.com; Twitter: @emily_hoeven
California is trying to throw an olive branch to NIMBY cities. Will they take it?
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02.04.2024
California Attorney General Rob Bonta is sponsoring a bill by Assembly Member Buffy Wicks that would set clear standards for the types of projects allowed under the builder’s remedy.
Top California officials have announced their newest plan to build more housing in areas that have lost local control over development. But it’s not the draconian slap to the face many NIMBY cities were likely expecting.
Instead, on Tuesday, Assembly Member Buffy Wicks, D-Oakland, introduced a bill sponsored by Attorney General Rob Bonta that extends an olive branch of sorts to local governments that have complained the state is threatening to unfairly punish them for not building enough housing.
The bill, AB1893, doubles down on the controversial “builder’s remedy” — a long-untested provision of California law that allows developers to bypass local zoning and design restrictions in jurisdictions without state-approved housing plans, as long as their projects contain a certain percentage of affordable units. This has led to some eye-catching and headline-grabbing proposals, such as a 50-story skyscraper in San Francisco’s Sunset neighborhood just a few blocks from the ocean.
Advertisement
Article continues below this ad
The fear provoked by such extravagantly excessive proposals was arguably the point of the builder’s remedy: to avoid opening themselves up to these extreme projects, even local governments notoriously averse to building new housing would be incentivized to do their part to plan for their share of the 2.5 million new homes California needs by 2031.
In this context, a bill to improve the........
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