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Legal Alert
AB 1893 (Wicks) is currently making its way through the legislature and would modify the Builder's Remedy under the Housing Accountability Act (HAA). This legal alert summarizes the significant amendments made to AB 1893 in the Senate on June 10, 2024. Please see our prior legal alert for background information on the Builder’s Remedy and the prior version of AB 1893. Please note that the legislative process is ongoing and additional amendments are expected.
Reduced Affordability Requirements
As now proposed, AB 1893 would:
Mixed-Use Projects
As now proposed, AB 1893 would allow a wider variety of mixed-use housing development projects to qualify for the Builder’s Remedy:
Maximum Density
As now proposed, AB 1893 would newly impose the greater of the following density maximums for Builder’s Remedy projects -- prior to any density bonus under the State Density Bonus Law:
Minimum Density
As now proposed, AB 1893 would newly impose the following density minimums for Builder’s Remedy projects:
Siting Requirement
As now proposed, AB 1893 would newly impose the following siting requirement for Builder’s Remedy projects: “The project site [shall not] abut a site where more than one-third of the square footage on the site has been used, within the past three years, by a heavy industrial use, or a Title V industrial use, as those terms are defined in Section 65913.16.”
Local Requirements
As now proposed, AB 1893 would specifically authorize a local agency to require a Builder’s Remedy project to comply with local objective, quantifiable, written development standards, conditions, and policies (Local Requirements), subject to the following limitations:
Density Bonus Law Projects
As now proposed, AB 1893 includes the following additional benefits for Builder’s Remedy projects that also utilize the State Density Bonus Law:
Project Vesting
As now proposed, AB 1893 would:
Local Agency Restrictions
As now proposed, AB 1893 would provide that a Builder’s Remedy project:
New Developer Protections
As now proposed, AB 1893 would provide that disapproval of a qualifying housing development project (including but not limited to a Builder’s Remedy project) by a local agency also includes any instance where the local agency “undertakes a course of conduct, including sustained inaction or the imposition of burdensome processing requirements, from which a reasonable person would conclude that the local agency intends to effectively disapprove the housing development.”
Recall that a local agency cannot disapprove a qualifying housing development project unless it makes specified findings based on a preponderance of the evidence in the record. (Gov. Code § 65589.5(d).) Therefore, this new provision would make it easier for project sponsors to prove that a local agency stalling for the purpose of suspending a disfavored housing development project has violated the HAA.
Implications
AB 1893 is an attempt to “modernize” the Builder’s Remedy by providing clarity to developers, local jurisdictions, and courts to avoid the “legal limbo” described by Attorney General Rob Bonta. As part of that compromise, significant new requirements would be imposed on Builder’s Remedy projects, including a new “cap” on residential density where no codified limit currently exists. In return, the clarifications made by AB 1893 and the reduced affordability requirement for mixed-income projects could help prompt additional Builder’s Remedy projects in jurisdictions that have failed to comply with State Housing Element Law.
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