On March 4, 2024, RBGG and its client, the California Housing Defense Fund (CalHDF), obtained a pathbreaking order enforcing the so-called “builder’s remedy” provision of California’s Housing Accountability Act against the City of La Canada Flintridge.  The builder’s remedy is a critical lynchpin in California’s efforts to combat the widespread exclusionary zoning practices that are a major cause of the state’s housing shortage.  But it had never been successfully enforced in court until now.  LA Superior Court Judge Mitchell Beckloff’s 39-page order granting CalHDF’s petition for writ of mandate confirms the viability of the builder’s remedy as a tool for combating exclusionary zoning and and puts cities throughout California on notice that they must accommodate their fair share of new housing development.  A copy of Judge Beckloff’s March 4 order is available here.

CalHDF’s press release about the court’s decision is set out below.  Governor Gavin Newsom issued a press release praising the decision, as did Attorney General Rob Bonta.

CalHDF Press Release

March 6, 2024

Contact: Courtney Welch, Director of External Affairs

California Housing Defense Fund Scores First Ever Legal Victory for California’s Builder’s Remedy

Los Angeles, CA: The California Housing Defense Fund has scored a pathbreaking victory for the “builder’s remedy,” a provision of state housing law that allows for development of housing unconstrained by local density and zoning limits in cities that lack compliant housing plans. As cities around the state fail to produce and adopt housing plans that will produce the new homes that California desperately needs, developers have proposed thousands of units of badly needed new housing throughout the state that exceed density and zoning limits that would otherwise constrain them. These proposals still face significant legal challenges to reach approval, because the builder’s remedy is untested. Since its addition to state housing law in 1990, there have been no homes actually approved and constructed as a result of the provision. This is all about to change.

The development in question was proposed for 600 Foothill Boulevard in La Cañada Flintridge, a wealthy suburb of Los Angeles. The proposal would include 80 new homes, 16 of which would be reserved for low-income households. The city intentionally maintained the site at lower density in their housing plan despite knowing that the owner wished to develop affordable housing. Shockingly, during public review of the housing element, some local residents commented that they might as well “move to Compton” or that they would have to “dust off their shotgun” if the city allowed low-income housing in the City.

After the city failed to produce a compliant housing plan over a year after the state deadline, the developer submitted the project under the builder’s remedy to avoid restrictive density limits. The city responded by denying the project on May 1st, 2023, refusing to acknowledge that the builder’s remedy applied to the project. CalHDF sued the city to overturn the denial, and the developer sued in a related lawsuit. Recognizing the importance of the case to state housing law, the state Department of Housing and Community Development intervened in the CalHDF lawsuit, represented by the Attorney General’s Office and arguing in favor of the application of the builder’s remedy. The city contested the application of the builder’s remedy on every possible issue, even arguing that requiring affordable housing development was unconstitutional after the Supreme Court’s decision banning affirmative action. After a four hour hearing on March 1st, the court issued its decision in favor of CalHDF on nearly every issue, ordering the city to process the application in accordance with the builder’s remedy.

“After this decision, cities can no longer pretend that the builder’s remedy doesn’t exist,” said Dylan Casey, Executive Director of the California Housing Defense Fund. “For years, many cities in California have ignored their obligations under state housing law. This decision demonstrates that cities have a legal obligation to allow housing development to address our severe housing and homelessness crisis, and that if they fail to develop local plans to meet this need, the builder’s remedy will allow for it regardless.”

“This is a victory in the fight for more housing”, said Courtney Welch, California Housing Defense Fund’s Director of External Affairs. “There is now a clear standard and repercussions for cities that refuse to participate in addressing our severe housing shortage.”

CalHDF was represented in the lawsuit by in-house counsel Nicholas Eckenwiler and Dylan Casey, as well as Lisa Ells and Alex Gourse from Rosen Bien Galvan & Grunfeld LLP. CalHDF is a 501c3 nonprofit whose mission is to increase the affordability and accessibility of housing in California by using legal advocacy and education to ensure cities comply with their own zoning ordinances and state housing law. Since 2015, CalHDF has successfully sued 16 California jurisdictions to defend housing, including Berkeley, Cupertino, Calabasas, Los Altos, San Mateo, San Francisco, Lafayette, Huntington Beach, and Rancho Palos Verdes.