A potentially pivotal court ruling that could prohibit cities from blocking certain housing projects may land by the end of this year.
Developers have filed lawsuits against various cities, including Del Mar, for rejecting proposals they say state law allows them to build.
But all eyes are on an appeal involving a project in La Cañada Flintridge in Los Angeles County regarding the law know as the “builder’s remedy.”
In essence, the law allows projects that include a certain amount of units set aside for lower-income residents to be built regardless of objections from local officials if the development was proposed when the jurisdiction did not have a certified, state-mandated housing plan.
Numerous cities have fought state housing goals that they consider to be too high.
That was the case in Del Mar, La Cañada Flintridge and other cities where developers citing the builder’s remedy law sued over rejection of their projects.
The developer of the proposed 259-unit mixed-income Seaside Ridge project in Del Mar recently put its lawsuit on hold pending the outcome of the L.A. County case, which would set a statewide precedent.
The builder’s remedy is among numerous legislative and legal moves by the state in recent years to force reluctant local jurisdictions to allow more housing, particularly for low- to moderate-income residents amid an affordable housing crisis in California.
Just this month, a proposed five-story building in Pacific Beach for lower-income families moved forward, sidestepping the city of San Diego’s 30-foot height limit in the coastal areas approved by San Diego voters in 1972.
The local height limit conflicts with the State Density Bonus Law, an incentive for developers to build deed-restricted affordable units on-site, according to Jennifer Van Grove of The San Diego Union-Tribune. The bonus law was updated just last year to clarify that it supersedes local voter initiatives.
The builder’s remedy stems from a three-decade-old housing provision that was bolstered by another state law ed in 2019. Some cities, such as Del Mar, now have a state-required housing element in place, but didn’t at the time the disputed projects were proposed.
More than 150 builders’ remedy applications seek to build tens of thousands of homes in 49 California cities, according to YIMBY Law, an arm of the pro-housing group “Yes In My Backyard.”
In La Cañada Flintridge, developers sought to build a five-story building that includes 80 mixed-income units, but were rejected by the city. In March, a state judge ruled the city violated the law in denying the application for the affordable-housing project last year.
La Cañada Flintridge has appealed that decision. Regardless of the coming ruling, an appeal to the California Supreme Court is a possibility.
Gov. Gavin Newsom and state Attorney General Rob Bonta intervened in the case, asking the lower court to reverse the city’s denial of the project.
“La Cañada Flintridge is the latest community that has failed in their effort to override state housing laws,” Newsom said in a statement in March. “Today’s favorable ruling should serve as a warning to other NIMBY jurisdictions that the state will hold every community able in planning for their fair share of housing.”
After failed legal challenges over state housing requirements, Coronado agreed in October to a state plan that makes room for 912 units, with more than half designated for low-income households. The state had threatened to sue Coronado to comply. Other cities have reached similar agreements.
At least eight of the builder’s remedy projects in California are the subject of current lawsuits, CalMatters reported.
So far, developers appear to be getting the upper hand. In three Los Angeles County cases, judges sided with the builders in two, according to the Orange County .
In the third, the judge issued a split decision, finding that cities must comply with the builder’s remedy, but that the provision doesn’t apply to projects in California’s protected coastal zone.
The law is complex and there’s uncertainty about how and when it can be enforced.
“I think there’s just a lot of disagreement on when the builder’s remedy is actually triggered and what that actually means,” Jason Rhine, director of legislative affairs for the League of California Cities, told the . “The law hasn’t been used a whole lot until recent years. … It’s untested, and it’s really unclear what those limitations are.”
Del Mar rejected the Seaside Ridge a few times on various grounds and further has said its now-certified housing plan meets housing goals. (However, a proposal to build state-required low-income housing on the Del Mar fairgrounds has stalled, leaving the city without “a single low-income unit in its housing portfolio,” according to Fox 5 San Diego.)
Regardless, developers reiterate they applied for the project before that plan was certified, allowing the builder’s remedy to kick in.
Even if the appeals court sides with La Cañada Flintridge on the builder’s remedy, Seaside Ridge developers say a different statute — Assembly Bill 1398 ed in 2021 — requires Del Mar to upzone the property to allow the project.
Cities have learned there always seems to be another law pressuring them on housing.
