Dave Rand is interviewed by California Development and Planning Report regarding builder’s remedy

Huntington Beach Fights Back on Builder’s Remedy; Santa Monica Backs Off

By Josh Stephens on Mar 6, 2023

It’s probably safe to say that, among the dozens of California cities that failed to adopt state-certified housing elements on time in the past few months, very few of them like the builder’s remedy. But, there’s dislike, and then there’s outright revolt.

The more extreme of those positions is being taken by the Orange County city of Huntington Beach. With a long history of resisting pro-housing reforms, often by instigating, or being the subject of, litigation, Huntington Beach recently dropped any pretense of complying with the builder’s remedy, despite fact that its housing element remains uncertified by the Department of Housing and Community Development.

The builder’s remedy essentially forces noncompliant cities to permit developments that include at least 20% affordable units, even if the developments exceed existing density and/or massing limits.

The city’s planning commission recently recommended that the city council draft and adopt an ordinance to ban builder’s remedy applications. Meanwhile, the city council, on a 4-3 vote, authorized City Attorney Michael Gates to proceed with a lawsuit challenging the city’s obligations to permit accessory drawling units under Senate Bill 9 and to exempt it from SB 10. (SB 10 requires cities to opt-in, which Huntington Beach has not done.)

“My general interpretation is that they don’t think anything applies to them,” said Elizabeth Hansberg, executive director of Orange County-based advocacy group People for Housing. “Because they’re a charter city or in the Coastal Zone or some other reason.”

The ban on builder’s remedy applications amounts to “effectively announcing legal secession from the state of California,” according to Los Angeles-based attorney Dave Rand, who represents builder’s remedy applications in Santa Monica and elsewhere.

The state seems to agree —and is pushing back.

In January, HCD sent a “Notice of Potential Violation” to the Huntington Beach, notifying the city that such a proposed ordinance would likely violate state housing and permitting laws. Several weeks later, in coordination with Attorney General Rob Bonta, HCD sent another letter to the city’s Planning Commission reiterating its position after reviewing the proposed language of the ordinance.

“The City of Huntington Beach’s proposed ordinance attempts to unlawfully exempt the City from state law that creates sorely needed additional housing,” said Bonta in a statement. “We’re putting the City on notice that adopting this ordinance would violate state law. I urge cities to take seriously their obligations under state housing laws. If you don’t, we will hold you accountable.”

Gates is essentially daring the state to take action.

(Huntington Beach city officials did not respond to requests for comment from CP&DR.)

Currently, no developers have submitted builder’s remedy applications in Huntington Beach—which may be the point.

Conversely, the City of Santa Monica is facing over a dozen builder’s remedy applications, which were filed late last year. Among the estimated 26 cities that have received builder’s remedy applications, Santa Monica’s number of applications, and total number of potential units, are by far the largest.

After some initial grumbling and rumors that the city might try not to honor applications, they appear to be proceeding apace.

“The projects are advancing. They have not been terminated…. we have not received a letter saying the builders remedy isn’t a thing,” said Rand. “The city has reserved all of its rights; that’s to be expected.” Rand added that Santa Monica is generally “very pro-housing” and “taking major steps to accommodate their RHNA (Regional Housing Needs Allocation) obligation.”

Santa Monica Community Development Director David Martin pledged that applications would abide by the builder’s remedy.

 “We recognize that this is allowed by the law. We are going to process them as required,” said Martin. “I think we’re still trying to understand what that means — what rights we have as a city. But we will process them according to the requirements.”

Martin added that Santa Monica does not intend to follow Huntington Beach’s lead.

“We are certainly paying attention to…. Huntington Beach,” said Martin. “The opinion of our city attorney’s office is that we wouldn’t be successful with that kind of challenge.”

Somewhere in between the respective attitudes of Santa Monica and Huntington Beach, other cities in the Southern California Association of Governments region are reportedly trying to resist the builder’s remedy in a variety of ways.

The City of Beverly Hills is essentially playing semantic games with HCD. According to Rand, the city is claiming that HCD’s stated desire for the city to be in “full compliance” means that it is already in “substantial compliance” and, therefore, not subject to the builder’s remedy, even though HCD notified the city that “additional revisions are necessary to fully comply.”

“You have to really suspend disbelief to entertain that one,” said Rand.

Hansberg faulted several SCAG region cities for making major revisions to their housing elements—such that they appear to fully accommodate their RHNA numbers—and calling them a “non substantive change” in order to advoid HCD scrutiny. She also said that some cities are attempting to “self-certify” their housing elements.”

“Cities are seeing what they can get away with” said Hansberg.

Rand added that, while some cities clearly oppose new housing, many of them earnestly want to meet their RHNA requirements but are confused or overwhelmed by the process of certifying housing elements and processing builder’s remedy applications.

“In the middle are most of the city we’re working in that are basically still trying to figure out what to do,” said Rand.

Rand added that clarity is likely to come in the form of one, or several, legal opinions. Currently, over a dozen lawsuits related to housing elements are pending across the state.

“Ultimately there’s going to be a court decision that’s going to clarify all of this,” said Rand. “Until that point, you’re going to see all sorts of jockeying and positioning.”


Elizabeth Hansberg, Executive Director, People for Housing, elizabeth@peopleforhousing.org

David Martin, Community Development Director, City of Santa Monica, david.martin@smgov.net

Dave Rand, Partner, Rand Paster Nelson, LLP, Dave@rpnllp.com