‘Builder’s remedy’ ruling may not apply to Claremont
by Steven Felschundneff | firstname.lastname@example.org
When the Claremont City Council approved its housing element last week, it also hit the pause button on a state law that can preempt local control over housing production.
However, a Los Angeles County judge threw some uncertainty into the mix with a ruling last week that La Cañada Flintridge missed an important deadline to rezone land in its jurisdiction and as a result, was not in “substantial compliance” with housing element law. The finding was a core part of a lawsuit filed by Californians for Homeownership against the wealthy Los Angeles County city.
“The court rejected the city’s argument that compliance with the deadlines in state housing element law is not mandatory and that cities are not subject to penalties when they fail to meet these deadlines,” according to a news release from the California Association of Realtors, which is the primary funder of Californians for Homeownership.
One of those “penalties” is a provision of Senate Bill 330, called the builder’s remedy, which allows a developer to skirt much of a city’s zoning requirements as long as the proposed housing sets aside 20% of the units for low-income families.
Californians for Homeownership filed a similar suit against Claremont last September, but the case was settled when city officials agreed to a timeline to get the housing element done.
The Claremont City Council’s action last week is an important step toward certification; however, the housing element will not be complete until the parcels identified in the document have been rezoned and the state has signed off on the plan. Claremont officials have 120 days to complete the rezoning. In the meantime, the city maintains that it is now in compliance with state law and can reject builder’s remedy applications, a process known as “self-certifying.”
“As a general rule, the builder’s remedy does not apply if the City has adopted a Housing Element Update that complies with the State’s Housing Element Law,” wrote city attorney Alisha Patterson in an email to the Courier. “[California Department of Housing and Community Development] certification entitles the City to a presumption that the City’s Housing Element Update complies, but even in the interim period, our position is that the adopted Housing Element Update fully complies, so going forward, the City is in a position to reject or deny builder’s remedy applications unless a Court or HCD determine otherwise.”
Patterson said interpreting builder’s remedy law is still evolving, that she is following the changes closely, but cautions that the court’s decision last week may not apply to Claremont even if the city appears to be in a similar situation to that of La Cañada Flintridge.
“As a trial court ruling, the La Cañada Flintridge decision is not binding legal precedent, and even if it were, Claremont’s situation is different from La Cañada Flintridge’s in at least two key respects,” Patterson said.
First, Claremont received preliminary feedback from Housing and Community Development that its draft housing element, which the council approved July 11, substantially complies with state law.
“In La Cañada Flintridge, HCD took the position that La Cañada Flintridge’s housing element is not in substantial compliance with State Housing Element Law,” Patterson said.
Second, Claremont is on target to rezone the parcels identified in the housing element within the 120-day timeframe, a deadline La Cañada Flintridge missed.
Patterson added that to date there are no court rulings that cover Claremont’s specific situation.
During the roughly 20 months Claremont has been out of compliance with state law and vulnerable to the builder’s remedy, only one such application has been filed. That came from Trumark Homes, which proposed an 87-unit plan that would blend single family homes and town homes on the former La Puerta middle school site.
Trumark’s initial application, which is still on the table, calls for 56 single family homes on the same plot of land at 2475 N. Forbes Ave. That application is scheduled to go through the approval process in the coming months.
Patterson said a developer could still submit a builder’s remedy application at any time, and that the city would evaluate it based on current law and HCD guidance.