With housing prices and homelessness continuing to rise here, the number of cities failing to properly plan for state-mandated housing goals may soon be compelled to increase their efforts in accordance with a tool known as Builders’ Remedy.
The Builders’ Remedy constrains a local government’s ability to legally deny a housing project under the Housing Accountability Act, Louis Mirante, vice president of public policy with the Bay Area Council, told the Northern California Record by email.
“It says that if a city does not have a valid housing element and a developer proposes a project that is 20 percent affordable housing, then the local government may not use its zoning code to deny the project,” Mirante said. “About half of Southern California jurisdictions do not currently have a valid housing element. Housing elements in the Bay Area are due on January 31, 2023, and I expect that about half of jurisdictions will not have a valid element either.”
Mirante noted every city in the state except for 38 have missed their RHNA (Regional Housing Needs Allocation), numbers in the last cycle, which is coming to a close now.
“That means about 450 local governments did not meet their RHNA, despite the fact that last cycle’s numbers were still too low,” Mirante said. “However, almost all of them had a valid housing element, which is the real test of whether the Builders’ Remedy applies.”
The RHNA process began in 1969, and updates in cycles every eight years.
“We are in Cycle 6 of RHNA, and there are several important changes in this cycle. Because of Council-sponsored legislation, the new overall state numbers are twice what they had been in the past,” Mirante said. “It is also harder for wealthy cities to game the system and force all low-income housing on poor jurisdictions, denying the kids who live in that housing of good schools and entrenching racial segregation. Perhaps most importantly, though, the state’s Department of Housing and Community Development (HCD) is reviewing housing elements with unprecedented rigor and attention to detail.”
It means the documents are better than ever before and more likely to produce the housing that is needed, Mirante said.
As costs have risen, it’s made housing affordability the leading cause of homelessness here.
“California and Texas have similarly strong economies and roughly approximate population sizes, but Texas has one-fifth the homelessness per person that California does,” Mirante said. “That’s because housing is cheap in Texas, and it is cheap in Texas because government policy in Texas makes it easier, faster, and cheaper to build housing there. If housing were as affordable in California as it is in Texas, I estimate that homelessness here would be reduced by over half with no additional spending on subsidies.”
The Bay Area Council was the legislative sponsor of both the Builders’ Remedy and the most recent version of housing element law, which was adopted in SB 828 from Sen. Scott Wiener, D - San Francisco.
“We want these tools to work and think they can, but local governments are proving now that they will undermine these laws at every chance,” Mirante said. “We have helped create a sophisticated system where local governments can choose where and how to permit housing, but despite our best work, local governments continue to misinterpret this authority as not one over how to build housing, but rather as one of if to build housing. In its next generation, housing law must directly preempt local governments’ zoning, approval streamlining, and fees schedule. It may even be time for the state of California to directly approve or deny housing and remove the local approval component altogether.”
Recent data shows 96 percent of San Francisco households making less than $150,000 a year are burdened by housing costs.
“The Builders’ Remedy is a real tool for building housing in places where local governments are being obstinate about creating a valid housing element,” Mirante said. “Local governments who are producing fictitious housing plans aimed at advancing NIMBY goals should reconsider that goal. California means business when it says it expects local governments to allow more housing.”