A Stronger Builders Remedy: AB 1893

AB 1893 makes the Builder’s Remedy a more effective tool for housing production by providing greater legal clarity and certainty for home builders who use it in localities that are out of compliance with state housing law. The bill moves from a theoretical, “unlimited density” Builder’s Remedy to one that will lead to significantly more housing production than under the status quo. 

The strong legal standards under AB 1893 will allow home builders to confidently plan and invest in Builder’s Remedy projects, with the knowledge that the rules they must follow are objective, clear, consistent, and enforceable. This certainty reduces the risk of arbitrary or inconsistent actions by local governments, which often impose subjective standards that are difficult or impossible to satisfy. 

Under AB 1893, home builders benefit from more predictable processes and fewer hearings, which will allow them to avoid costly legal battles and delays.  The bill also creates the equivalent of state-imposed density standards in jurisdictions without a compliant housing element. 

AB 1893 could also lead to more housing production by being a more certain and effective accountability mechanism, by forcing many non-compliant jurisdictions to choose between the certainty of compliance, and the certainty of a stronger Builder’s Remedy. These factors will lead to significantly more housing production than the current, theoretically unlimited Builder’s Remedy, which unfortunately hasn’t yet led to any housing production to date.

Context: Why the Current Builders Remedy Does Not Work

The current Builder’s Remedy’s “free-for-all” approach allows for a theoretical maximum of unlimited density, which has led to lengthy legal battles over zoning. Builders can propose a project of anyscale and density, regardless of the underlying, pre-existing zoning; municipalities have been able to successfully resist these projects by using legal tactics that take advantage of the uncertainty created by these open-ended standards. 

As a consequence, no housing actually gets built under the current Builders Remedy. 

Key Points:

1. A Builder’s Remedy That Works:
   • AB 1893 ensures that, in jurisdictions without a compliant housing element, builders can use the Builder’s Remedy with legal certainty, without the burden of having to pursue protracted litigation. This change makes the Builder’s Remedy a functional and scalable tool, rather than a theoretical one. 
   • It does this by requiring local governments to process new Builders Remedy applications through the same process as a normal, zoning-compliant development. Local governments may not require a rezoning or general plan amendment (as cities like Beverly Hills have sought to do), impose extra fees or other requirements, or require excessive hearings.
   • AB 1893 also clarifies and strengthens the Housing Accountability Act for all residential developments, including new Builders Remedy projects, by expanding and clarifying the definition of what constitutes “effective disapproval” of a development application to include a number of common tactics of NIMBY obstruction, including failure to meet statutory timelines for review of the application, and inappropriate determinations that an application is incomplete.

2. State-Imposed Density Standards:
   • In jurisdictions without a compliant housing element, the provisions of AB 1893 effectively create state-imposed density standards. This is a game-changer in terms of housing production, as it replaces local density limits with a uniform density standard that can be applied in non-compliant jurisdictions statewide.
   • The state density standards also make the new Builders Remedy more clearly compatible with state streamlining laws like SB 35 that require consistency with zoning standards as a condition of eligibility. California YIMBY also fought for provisions in the bill that we believe will make Builders Remedy projects eligible for the CEQA infill exemption.

3. Ambitious Density Standards:
   • While there has been some discussion that the density standards in AB 1893 could be higher, it’s important to note that these standards are among the most aggressive of any statewide bill in California to date. They are designed to be ambitious yet practical, ensuring that they can be widely applied and lead to real, significant increases in housing production. California YIMBY was instrumental in ensuring robust densities near major transit areas.

4. Improved Accountability Mechanism for HCD: 
   • AB 1893 will make it easier for HCD to hold local governments accountable to their Housing Element obligations since HCD won’t be responsible for triggering  ‘unlimited density’ buildings if they reject a Housing Element. This provides local governments with a strong incentive to comply with state housing laws, further strengthening HCD’s enforcement capabilities.

AB 1893 represents a strategic shift from an unlimited density Builder’s Remedy that hasn’t worked to date, to a framework that is ambitious and achievable. By securing a Builder’s Remedy that functions effectively, and establishing robust statewide density standards in non-compliant jurisdictions, we are poised to unlock vastly more housing development than was historically possible.

This analysis from Holland & Knight explains how AB 1893 works in detail. Note that the leading Builder’s Remedy attorney, Dave Rand, thinks AB 1893 will help him win more housing approvals for his clients.

In jurisdictions without a compliant housing element, the following densities would apply under AB 1893:

• Outside of rural areas, the new Builder’s Remedy contained in AB 1893 will allow at least townhome density throughout the state. Additionally, those densities can be further increased through the use of state density bonus law. 
• The law would allow up to 35 dwelling units per acre (du/ace) in areas within 1⁄2 mile of a major transit stop; in high resource areas with very low vehicle miles traveled; or in transit-rich areas, as defined in state law. 
• Finally, the law would allow for affordable units provided in a BR project to grant an additional density bonus based on state Density Bonus Law.