What is Builder's Remedy?
To find a specific Builder's Remedy project, please go to our Major Projects webpage.
To address the statewide housing shortage crisis, the State Housing Accountability Act establishes limitations on a local government’s ability to deny, reduce the density of, or make infeasible housing development projects, and includes penalties for noncompliance. (See Gov. Code § 65589.5). One of these penalties, referred to as the “Builder’s Remedy,” allows housing development projects that do not comply with local General Plan and Zoning standards, when a local jurisdiction does not have a compliant housing element.
Specifically, the Housing Accountability Act limits a local jurisdiction’s ability to disapprove a housing project that provides 20% of the units affordable to low- or very-low-income families, or 100% of the units to moderate-income families, except in very specific circumstances. These include:
- The jurisdiction has met or exceeded its Regional Housing Needs Allocation (RHNA) for the proposed income categories in the development.
- The housing development or emergency shelter would have a specific adverse impact on public health and safety.
- The denial or condition is required to meet state or federal law, and there is no feasible method to comply without making the development unaffordable.
- The project is proposed on land zoned for agriculture or resource preservation that is surrounded on at least two sides by land being used for agriculture or resource preservation, or there are not adequate water or sewage facilities to the serve the project.
- The project is inconsistent with both the zoning ordinance and the land use designation as specified in the general plan element, and the jurisdiction has adopted a housing element in substantial compliance with state law.
“Builder’s Remedy,” refers to subsection (5) above, and goes into effect when a local jurisdiction’s housing element is not substantially compliant with State Law. If an application for an affordable housing project is submitted during this time, the local jurisdiction cannot disapprove the project on the basis that it does not comply with the County’s General Plan and Zoning Ordinance.
The County was subject to the “Builder's Remedy” for a short period of time when its Housing Element was out of compliance. Housing elements are adopted on 8-year planning cycles. Over time, the requirements for housing elements have become significantly more onerous, and the State Department of Housing and Community Development (HCD), tasked with certifying the compliance of housing elements, has often required several rounds of review and revision before housing elements can be certified. Within the Monterey Bay Region, housing elements were required to be certified by December 15, 2023. While the County adopted its Housing Element on November 14, 2023, HCD did not certify the County’s Housing Element until April 2024. During the four-month period where the County was out of compliance, projects could be submitted that provided the requisite affordable housing, and the County cannot deny these projects based on the fact that they do not meet the County’s General Plan and Zoning standards. This allows developments to be submitted in excess of the County’s adopted standards.
During the four-month non-compliance period, four proposals were submitted under “Builder's Remedy." Project details and status for each application are provided below.