To Remedy, or Not to Remedy – That Is the Question

Nov 19, 2022 | Blog, News

A new paper by UC Davis School of Law student Jordan Wright unravels the myriad complexities of California’s “Builder’s Remedy,” a rarely-used legal practice that may (or may not) greatly accelerate new homebuilding across the state. 

The Builder’s Remedy is an obscure provision of the state’s Housing Accountability Act. Its stated purpose is to enable homebuilders to bypass local land use regulations and restrictions when a local government’s Housing Element is out of compliance with state requirements. But the application of the Builder’s Remedy has never been tested in court, and may conflict with other statutes.

Key takeaways:

  1. As Wright explains, “nobody has ever settled which development standards are eliminated by the builder’s remedy and which are preserved by the savings clause” in the Housing Accountability Act (HAA), and “the looming uncertainties in the coaction of these provisions deter developers who may otherwise pursue builder’s remedy project approvals.”
  2. It turns out that this was never originally intended to be in question. The HAA was quite clear that the Builder’s Remedy superseded local development standards “after a 2004 amendment inadvertently removed crucial language which linked a city’s ability to apply development conditions to its having adopted a housing element.”
  3. Courts can and should consider the clearly documented legislative intent to clear up this uncertainty and “construe the HAA broadly in the interest of housing.”