A provision under state law has caused some Orange County cities to start battling development projects that usually wouldn’t be permissible.
At least three Orange County cities have projects submitted under “builders remedy,” which is part of the state’s 1982-passed Housing Accountability Act, and kicks in if a city fails to have a state-mandated affordable housing plan.
Officials from the city of Orange confirmed three projects, so far, attempting to use the provision.
“There will be tremendous pushback from the citizens, and I can’t blame them,” Orange Mayor Dan Slater told The Epoch Times. “None of these three parcels are zoned for housing.”
Developers took advantage after the city failed to have a certified “housing element,” or plan, by the state’s October 2022 deadline.
The state has required cities and counties to update their housing element plans every five or eight years since 1969 to “meet the housing needs of everyone in the community,” according to the Department of Housing and Community Development.
Slater said the city turned in what they thought was a compliant plan last year but are now adding minor details after not receiving approval from the housing department.
Of the projects submitted, residential developers are seeking to build in areas zoned for open space, commercial, and “mineral resources,” or mining, according to Slater.
The provision allows developers to ignore local zoning laws if their projects include 20 percent low-income or all moderate-income units.
“We’re constitutionally given the responsibility for local zoning. The state seems intent on taking it away from us,” he said.
La Habra officials, as well, confirmed at least one project has been submitted using the provision for a 530-unit condo complex, as tall as three stories, that would be located on West Ridge Golf Club property. The area is currently zoned for open space.
Also, in Laguna Hills, one “preliminary application” has been submitted, according to city staff. Developers there are seeking to construct a 190-unit, five-story senior apartment building, of which 38 are designated reduced rent for Section 8 applicants.
Although the city does not have an approved housing plan by state housing officials, public city documents on the issue argue that “Laguna Hills has, in its informed and advised opinion, substantially complied with Housing Element law and other applicable law as of June 28, 2022.”
Although revisions were requested by the state, the city claims it turned in what it believed to be a compliant plan last June.
The application for the proposed senior apartment project was submitted in December, which city staff said doesn’t constitute an application under “builder’s remedy.”
“The city of Laguna Hills does not agree that the preliminary application … should or must proceed as a ‘builder’s remedy’ application or project,” officials said in the documents.
In Huntington Beach, although no applications have been submitted, the city council voted 4–3 on March 7 to pass an ordinance that would negate the builder’s remedy provision. It is the first city in the state to attempt to do such.
It missed deadlines in 2021 and 2022 to have an approved housing plan, activating the provision.
Mayor Tony Strickland and Councilman Casey McKeon first discussed the idea for such an ordinance during a Feb. 14 press conference.
In a previous interview with The Epoch Times, they said the ordinance is intended to ensure protection against unwanted developments, while the city works to have its housing element approved by the state.
In Orange County, there are 20 jurisdictions, and 67 in Los Angeles, that have non-compliant housing element plans to date, according to state housing department data.
But trying to get around the state provision can have consequences.
On March 9, the state of California filed a lawsuit against Huntington Beach for what it says is its continued attempts to evade housing laws, officials said in a press release. In response, Huntington Beach announced its own lawsuit later that day challenging the state over the 13,368 homes for which the city has been state-mandated to plan.
According to an analysis conducted by the Orange County Register, as of late January, developers have filed 26 applications in Southern California under builder’s remedy, seeking to build 8,642 new homes, with nearly 21 percent of those designated as low-income units, as required.
