Contractor Marshal Rothman stands on the property he owns in Fairfax on March 27, 2023. He has owned the property for the last decade, hoping to turn it into housing. (Beth LaBerge/KQED)
This story contains two corrections.
Housing advocates touted the “builder’s remedy” as a clever way to circumvent NIMBY politics and get more housing built. But in the two months since the law has been available to Bay Area developers, few have submitted proposals.
In a survey of more than 30 cities, five have received Builder’s Remedy applications: San Jose, Mountain View, Los Altos Hills, Fairfax and Brentwood. If they move forward, the nine projects would total 1,203 units, of which 250 would be affordable.
More on California Housing
That’s a trickled compared to the deluge Southern California cities received, with 26 applications totaling more than 8,600 homes — almost 2,000 of them affordable.
The difference, said UC Davis law professor Chris Elmendorf, is a growing reticence to use the law in the Bay Area. Developers are wary of potential legal challenges and worry a builder’s remedy project could sever important relationships with city officials they rely on to get other projects approved. Despite the slow uptick, housing advocates say the law is already doing its job by forcing cities to adopt housing plans that meet the state’s ambitious goal to build 2.5 million new homes and apartments by 2031.
“There’s a lot of uncertainty for developers that makes most developers pretty reluctant to pull the trigger on a [builder’s remedy] project,” Elmendorf said. He added that even without the volume of applications seen in Southern California cities, “it has done an enormous amount of good.”
The builder’s remedy is a 1990 law that allows developers to circumvent local building rules, if the city is out of compliance with state housing law, and if it meets certain affordability requirements. Developers have long had the ability to invoke the law, but according to Elmendorf, many have only recently been willing to use it. This is due, in part, to newly passed legislation and growing concern about the state’s housing crisis.
“The usual basis on which a city denies a project is [that it might be] too tall, it’s too big, it doesn’t conform to community character,” Elmendorf said. “All of that is off the table.”
To meet its housing goals, California now requires cities to plan for more housing than it ever has in the past. But rather than rubber-stamp the plans, it’s mandating they place new housing in neighborhoods with highly rated schools, grocery stores and access to transportation. All of this has raised the stakes of compliance, often forcing cities to resubmit plans multiple times, which in turn has allowed developers more time to submit builder’s remedy proposals.
In Southern California, cities had to win state approval for their housing plans by October 2021. Developers waited nearly a year to submit builder’s remedy projects, which Elmendorf said reflected a lack of awareness about the law.
But once they caught on, some cities got a flood of applications. Santa Monica notoriously received 16 applications within the span of a few weeks starting in September 2022 and has begun processing them.
In Huntington Beach, city officials chose a more combative approach by trying to ban builder’s remedy applications outright. The Attorney General’s Office filed a lawsuit in Orange County against the town, arguing the ban is illegal under state law. And, in the Bay Area, some developers are already running up against legal challenges of their own.
When developer Marshal Rothman submitted a preliminary application to build 10 single-family homes in Fairfax, the city charged him $50,000 in application fees. Fairfax Mayor Chance Cutrano defended the fees, saying they include a legal review of the application. Until Rothman pays the fee, Cutrano said, the application would be incomplete.
Rothman, who has been trying to build these homes for a decade, wants to sue the city over its steep fee, but fears a lawsuit could be even more costly.
“I’m a contractor and I don’t have a lot of money,” Rothman said. “At this point, I have a piece of property I’ve been supporting for 10 years.”
Sonja Trauss, founder of nonprofit YIMBY Law is helping Rothman develop a lawsuit against the city and said Fairfax officials don’t need a legal review unless they plan to litigate the project.
“It’s not hard to read between the lines that the only reason you need a special [legal] consultant for a builder’s remedy project is if you are hiring a lawyer to stop it,” she said.
In Los Altos Hills, Sasha Zbrozek wasted no time submitting a builder’s remedy application, filing his plan the first day he legally could.
He wants to build and rent a five-unit townhouse on his property to make up some of the money he’s been spending to repair his home. But just a month after he submitted, city officials found the application incomplete. Zbrozek said he also plans to sue the city to get his townhouses built.
“[My] 1.84 acres are theoretically mine, but not really,” Zbrozek said. “This whole odyssey is my attempt to claw back some tiny modicum of self-determination.”
Zbrozek and his wife, Stella Wang, bought their house in 2019 to make room for children they hoped to have one day.
But after the first rain, Zbrozek noticed wet patches on the walls and discovered a crumbling foundation. It took him more than two years to fix the leaky roof, and more repairs are still pending. He blames the planning department for moving too slowly to allow him to fix his house.
“It never occurred to us that planning departments could be quite so recalcitrant towards doing literally anything,” Zbrozek said. “I’m going to exit this process older, without kids, and poorer than I would have had this been a quick and easy process like it should have been. I generally just feel like I’ve wasted a life span.”
He became so frustrated with the process that he left his job as a computer software developer to build housing instead. It’s part of the reason he’s not afraid to use the builder’s remedy: He doesn’t have preexisting relationships with city officials he wants to maintain. He saw what developers in Santa Monica did with the builder’s remedy and was inspired to do the same.
“The fact that anyone was winning against the recalcitrant zoning brought joy to my heart,” Zbrozek said. “And it only brought even more joy when I realized I, too, might be able to follow in those footsteps.”
Most developers rely on their relationships with city planners and the city council to get their plans approved. Adam Mayberry, an architect in Davis, who is considering submitting a builder’s remedy proposal there, fears it could damage ties with the city officials he often works with.
“[Developers] are essentially saying, I’m going to do something that most likely will get all my neighbors really mad, and they’re all going to complain to you, and you’re going to have to face all this undue stress because of something I’ve done,” Mayberry said. “I don’t want to be a middle finger.”
Despite the potential repercussions, Mayberry still plans to submit a builder’s remedy application. He sees it as an important tool to combat opposition to housing. For too long, Mayberry said, cities were allowed to exert control over how much housing was built in their jurisdictions. But that housing was never built.
“The state said you can have local control as long as [the city] meets the demands of the citizens, and they’re not meeting those demands,” he said. “So [the state is putting the control] in the hands of people who can make a difference in the housing shortage — developers, builders and architects like myself.”
Some housing advocates, like Trauss of YIMBY Action, were skeptical anyone would use the builder’s remedy in the state. So, she’s pleased to see people taking advantage of it.
“I’ve been feeling awesome,” Trauss said. “I’m amazed at how much interest there is, and people are considering it.”
Other housing advocates and experts view the mere presence of the builder’s remedy as an important tool to scare cities and counties into adopting state-approved housing plans to avoid development they can’t control. And some residents in Alameda, the first Bay Area city to get its housing plan approved by the state, used the builder’s remedy to advocate for the speedy passage of their city’s plan.
Even if most Bay Area planning departments don’t receive builder’s remedy applications, Elmendorf sees the threat of it as a force for good, especially in cities like San Francisco, where new development is slow; that city adopted its plan to build more than 82,000 homes on the day of the state-mandated deadline.
“It’s just inconceivable to anyone who has observed politics in San Francisco that the Board of Supervisors would adopt that kind of plan, unless the supervisors were terrified about state law,” Elmendorf said.
Correction: An earlier version of this story incorrectly stated San Jose received completed Builder’s Remedy applications. The applications were preliminary. An earlier version also incorrectly identified Sonja Trauss as the founder of YIMBY Action. Trauss is the founder of YIMBY Law, a 501(c)3 organization the leads legal enforcement.
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