California's "Builder's Remedy" Faces Varied Implementation Timelines, Legal Challenges

The controversial "builder's remedy" provision in California's housing law could become fully actionable as early as February 1, or face delays extending beyond a year, depending on developer actions, state agency decisions, and potential court interventions. Chris Elmendorf, a prominent legal scholar, outlined these potential timelines, highlighting the dynamic and often litigious landscape surrounding the state's efforts to boost housing development.

"In summary: the builder's remedy could arrive: 1) as soon as Feb. 1, if a builder rolls the dice successfully; 2) as soon as March 1, if HCD does the decertification promptly; or 3) a year or more later, if #1 fails, HCD doesn't do #2, and a court sets the issue for trial," Elmendorf stated on social media.

The "builder's remedy" is a provision within California's Housing Accountability Act (HAA) that allows developers to bypass local zoning regulations for housing projects, provided a certain percentage of units are affordable, in cities or counties that do not have a state-certified Housing Element. This tool gained significant traction following recent legislative efforts to address the state's severe housing shortage. The California Department of Housing and Community Development (HCD) plays a crucial role in certifying these Housing Elements, and its determination of non-compliance is key to activating the builder's remedy.

Recent legislation, including AB 1893, AB 1886, and AB 2023, has sought to clarify and strengthen the builder's remedy. AB 1886, for instance, explicitly states that only HCD can certify a Housing Element, preventing local jurisdictions from "self-certifying" to avoid the remedy. AB 2023 further places the burden on local agencies to challenge HCD's findings of non-compliance, granting deference to the state agency's determinations.

The timeline for the builder's remedy's full impact is heavily influenced by these factors. A developer might "roll the dice" by submitting a project under the remedy, potentially forcing a local government's hand. Alternatively, a prompt decertification of a local Housing Element by HCD could swiftly open the door for builder's remedy projects. However, if these initial pathways are not successful, or if cities challenge HCD's decisions, the matter could proceed to trial, significantly extending the timeline for implementation and potentially delaying housing construction by a year or more.