AG Bonta is ready to give affordable housing the legal oomph it needs against cities | Opinion
A decades-old legal provision that’s been in effect nearly as long as I’ve been alive is getting a much-needed face-lift that will help push the state away from NIMBYs and toward more affordable housing — and, ultimately, ease the state’s homelessness crisis.
The “builder’s remedy” was first introduced in 1990 in an update to the Housing Accountability Act, which in turn was enacted in 1982. It allowed any developer the right to build anything, anywhere, so long as 20% of the building was set aside for low-income residents and as long as the city did not have a housing plan.
Though the remedy was historically only used in rare cases — and by disgruntled homeowners at that — it’s recently seen new purpose as developers have been more willing to take on the fight to get affordable housing built across California, a stubborn state mired in its own status quo.
On Tuesday, California Attorney General Rob Bonta will announce his support of Assembly Bill 1893, introduced by Assemblywoman Buffy Wicks (D-Oakland).
The proposed law seeks to provide further protections for the state’s would-be affordable housing developers.
“It’s going to take all of us to solve our housing crisis, and AB 1893 will require all cities and counties to be a part of the solution,” Wicks said in a news release. “The message to local jurisdictions is clear: The days of shirking your responsibility to your neighbors are over.”
Wicks’ effort to update and further define the legal outlines and ramifications for recalcitrant cities is well-placed in time and could capture the attention and support of fellow legislators, especially with Bonta’s firepower.
If passed, AB 1893 would give each side clear playing rules — something local governments crave. It would also (hopefully) spur the construction of desperately needed homes for thousands of Californians by giving small-scale developers ammunition in the fight against balking cities and counties.
The builder’s remedy would be legally defined and further limited to eliminate lasting legal disputes that are clogging up the construction of affordable and mixed-income housing in any California city or county that quells such development through zoning laws or restrictive housing plans. If local governments pass a housing plan that doesn’t conform to the state’s affordable housing guidelines or is not certified by the state, developers can use the remedy instead. The proposed law would be “self-executing,” so that the state and its courts need not be involved unless necessary.
This kind of legal muscle from Bonta’s office could encourage cities to create better housing plans and help developers avoid costly litigation fees when looking to build smaller projects.
If you build it
In 2017, a then-Lt. Gov. Gavin Newsom said that to satisfy the state’s pent-up demand, counteract the state’s high purchasing prices for homes and meet the needs of its growing population, California would need to build 3.5 million homes by 2025. Now, in 2024, the Newsom administration has come nowhere close — though 123,000 new housing units were built in 2022, up 0.83% over the previous year. (Newsom, by the way, recently revised his lofty goal to a more manageable 2.5 million homes by 2030.)
But state legislators are finally catching wise to the call, even if they are a few years late.
AB 1893 is among a bevy of housing bills this year, including another that’s particularly eye-catching: AB 2584, by Gen Z-cusper Assemblyman Alex Lee (D-San Jose). Lee’s bill would ban corporations from buying up single-family homes and converting them to rentals in a state where home ownership is out of reach for more than half the adult population, at a staggeringly low 43.5%.
“(W)e need more housing that’s the solution to our crisis,” Lee wrote on X, formerly known as Twitter. “But we can’t let profiteers take advantage of our limited supply of housing of all types.”
The Sacramento region just went through one such sideshow when the city of Elk Grove denied an affordable housing complex in its Old Town region. After a lengthy litigation process that involved Bonta’s office filing suit against the city and the developer, Elk Grove agreed to pay several million dollars to the developer in fees and land rights for an affordable housing project that would have been just fine at the original proposed location.
In summary, the state wants to make it easier for affordable housing to be built without cities and counties using their usual tactics to delay or skirt the process, keeping poor people out of neighborhoods protected by monied interests representing them. With any luck, large-scale developers responsible for California’s current sprawl of single-family homes at astronomical prices won’t be able to sink their claws into this one, even though their money tends to speak the loudest in any housing debate.
New limitations
Any new affordable housing law has to thread a particularly fine needle: Allow builders to construct more freely, but give cities the legal limits they need to function. AB 1893 attempts to do that by establishing reasonable limits on projects that qualify for the builder’s remedy pathway to production, such as not allowing development in industrial zones and establishing boundaries of density and square footage.
It’s not quite the free-for-all intended by the original law, but that’s for the ultimate good of all parties.
The state’s compromise to developers for these limitations is to reduce the minimum of affordability in any project from 20% of affordable housing to 10%. However, to engage more types of builders and encourage different types of housing — especially housing in the “Missing Middle,” with price ranges available to middle-income families — projects with less than 10 units will be exempt from the affordability percentages.
“It has been over 30 years since the builder’s remedy was enacted and it’s remained in effect, largely unchanged, since then,” Bonta said in the same news release.
“With AB 1893, we are finally updating this important provision to be clearer for local governments, planners, developers and courts, while ensuring that even cities without up-to-date housing plans continue to develop desperately needed housing that is affordable to middle-class and lower-income Californians.”
The state should expect grumbling at best from the cities and some courtroom battles at worst. But with a new builder’s remedy in every builder’s toolkit, any local government would be foolish to cross such delineated legal lines. And to show for their begrudging progress, many thousands more Californians will have a roof over their heads in the next decade, for the ultimate good of every city.
This story was originally published April 2, 2024 at 11:15 AM with the headline "AG Bonta is ready to give affordable housing the legal oomph it needs against cities | Opinion."
