California’s “Builder’s Remedy” for Affordable Housing Projects: A View from the Legislative History

Abstract

California’s Housing Accountability Act (HAA) contains two seemingly contradictory provisions. On the one hand, the “builder’s remedy” prohibits cities from denying an affordable housing project on the basis of its zoning code or general plan if the city lacks a compliant housing element. On the other hand, a savings clause appears to protect cities’ authority to apply “development standards” to the very same project. Uncertainty about the scope of the savings clause likely thwarts developers from pursuing builder’s remedy-project approvals. This paper begins by detailing each provision and the complex challenges that interfacing them presents. It next demystifies their relationship by drawing from the HAA’s legislative history. Finally, it suggests two ways of reconciling these provisions in a manner that faithfully adheres to their legislative intent, as well as the HAA’s internal directive to advance housing development. Anticipating future builder’s remedy lawsuits, this paper’s primary goal is to inform a court’s decision to properly construe these provisions in a way that streamlines housing development rather than impedes it.