California Senate bill 457 (SB 457), which aimed to limit applications of the zoning bypass provision “Builder’s Remedy,” failed in the Senate Housing Committee on April 29. Endorsed by the Palo Alto City Council, the legislation intended to curb projects that are permitted to exceed zoning regulations because city they are based in did not adopt state-approved housing plans.
“Builder’s Remedy” is a state provision that becomes applicable when a city does not have a state-certified housing plan by its deadline every eight years. Developers can then submit projects that bypass local zoning or general plan restrictions, provided the plans include a designated proportion of units for lower or middle income households.
Recent “Builder’s Remedy” projects, such as the multipurpose complex proposed for 80 Willow Road in Menlo Park, have raised concerns about excessive growth beyond regular zoning law restrictions.
“Builder’s Remedy” applications are viable right up until a housing plan’s date of approval. However, SB 457, proposed by senator Josh Becker, would allow cities to retroactively invalidate applications that occurred after the submission date of a housing plan that was later approved. Additionally, the bill would have required developers to submit a complete, rather than provisionary, application prior to this deadline.
Palo Alto City Council member Greer Stone considers the bill as a means of “clos[ing] a loophole” in “Builder’s Remedy”. The bill would have stopped the “unfair” penalizing of cities for delays in approval caused by the California Department of Housing & Community Development (HCD), Stone wrote in an email to The Daily. “Prolonged review periods or vague feedback can leave cities in limbo,” during which “Builder’s Remedy” kicks in, he wrote.
Meanwhile, opponents of the bill consider such arguments invalid. Rafa Sonnenfeld, a senior manager of “Yes In My Backyard” (YIMBY) Law, highlighted that the state has a 90-day deadline to respond to proposed housing elements.
“Cities are well aware of the deadlines for complying with housing element law years in advance,” Sonnenfeld said in an interview with The Daily.
Sonnenfeld also warned of the possibility of cities acting in bad faith and undermining projects by denying the completeness of their applications. “They can come up with all sorts of spurious reasons why the application doesn’t satisfy their requirements,” he said.
Another problem they cited was that of incentive: “Builder’s Remedy” serves as a means of encouraging cities to work in a timely manner towards submitting compliant housing plans, Sonnenfeld said.
Stone disagreed. “I believe the greater issue is not a lack of incentive, but rather a process that lacks fairness and clarity,” he wrote.
On April 7, the Palo Alto City Council voted four-three to pass a motion in support of the bill. During the meeting, council members had choice words for projects like 80 Willow Road, which vice mayor Vicki Veenker termed a “monstrosity” and councilmember Julie Lythcott-Haimes ’89 called a “flagrant foul.”
Mayor Ed Lauing, who voted for the support position, said that the bill “doesn’t change the teeth of the Builder’s Remedy” while eliminating uncertainty as to when the provision applies.
Meanwhile, councilmember George Lu ‘14, who voted against, suggested that the opposite would occur, making “Builder’s Remedy” projects so uncertain that they would “almost never be submitted.”
Despite concerns, the Council sent Lauing as a representative of the city to testify in support of the bill in front of the California Senate Housing Committee.
Oisín Heneghan ’04, one of the developers behind 80 Willow Road, believes the city’s support of the bill to be hypocritical. Heneghan noted that over 2,000 units in the city’s pipeline are part of “Builder’s Remedy” applications. “Without this essential tool, Palo Alto would effectively produce no new housing,” he wrote in an email to The Daily. “It’s time to call out pretend liberals who advocate abundance in rhetoric but actively obstruct it in practice.”
On April 29, the bill was heard by the Senate Housing Committee.
Members of the committee were open to the concept of the bill: senator Christopher Cabaldon agreed that Builder’s Remedy is a “blunt policy tool” and senator Tim Grayson said that the bill is “onto something.” However, the committee stated concerns with the retroactivity of the bill, which might block projects that are already in the pipeline.
Ultimately, the bill failed the vote.
Palo Alto City Council member Patrick Burt, who previously voted in favor of the city’s support for the bill, called the Committee’s decision “not shocking, but disappointing.”
“ I think there was a lot of misconception and misunderstanding about… the history of the ‘Builder’s Remedy’,” he said.
Meanwhile, Sonnenfeld believes that the commission made the right call. “ It’s good that, in this case, the legislature got it right and killed this bill because it was going in the wrong direction,” he said.