Over the last several years, a plethora of legislation has been adopted in Sacramento with the intention of spurring housing development in California in response to our housing crisis, with a number of these laws being previously noted in this blog. Hand in hand with these efforts, the Association of Bay Area Governments (“ABAG”), a regional planning agency, has set housing unit development targets for local governments to meet in order to satisfy the demand for housing in this region. Together, these imperatives place great pressure on cities and counties to authorize more housing construction.
As you may know, January 31 was the deadline set by ABAG for those jurisdictions to adopt housing elements under their general plans that comply with state law, as certified by the California Department of Housing and Community Development (“HCD”). As reported by the Bay Area Council, a regional economic development organization, most local jurisdictions failed to meet that deadline, an unsurprising fact given the deep roots of California’s housing crisis in local opposition by some cities towards housing development.
Their failure to follow California law means that, pursuant to California’s Housing Accountability Act, these cities and counties may not reject housing development projects on the ground that they conflict with their general plan and zoning ordinance. This means that project proponents can pursue what is called the “Builder’s Remedy,” in which they may seek and demand approval for housing developments that do not comply with those restrictions. In addition, if these jurisdictions fail to obtain HCD housing element approval by May 31, 2023, Assembly Bill 1389 requires that they must rezone those sites before they can obtain HCD approval.
Now that ABAG’s January 31 deadline has come and gone, developers throughout the Bay Area are now expected to take advantage of these legal remedies to pursue projects that previously would not have passed muster. In Mountain View, right next door to where I live in Los Altos, Forrest Linebarger, a local developer, is now seeking to build a 6-story, 85 unit project, including 17 affordable units, located on a half-acre on Tyrella Avenue. In addition, another developer is asking for Mountain View’s approval to construct a housing project located on Gamel Way pursuant to the builder’s remedy.
Meanwhile, in nearby Los Altos Hills, Mr. Linebarger has also applied for approval to develop two 44-unit condominium projects on two sites on Mora Drive. Finally, also in Los Altos Hills, Sasha Zbrozek has proposed redeveloping a nearly 2-acre site on Summitwood Road into 15 apartments and 5 townhouses. While the outcome of these projects remains to be seen, we can be confident that we will see the submission of even more development proposals taking advantage of these legal remedies throughout the Bay Area, until such time, if at all, that the noncompliant jurisdictions manage to cure their defaults with HCD.