With 40% of jurisdictions in California pending State approval as of June 30 on how well their local housing policies and programs comply with statewide goals, it’s no wonder that questions and concerns regarding the implications to our local communities continue to grow. I am happy to report that on Aug. 21, Gilroy received official notification of compliance that now concludes this cycle of State approval.
State approval of each jurisdiction’s housing policies is done every eight years through the Housing Element certification process. The current approval cycle covers 2023-2031 and represents the sixth eight-year cycle to go through this process with the State.
A Housing Element refers to a specific portion of a local jurisdiction’s General Plan, a 20-year document that spells out the long-term framework for future growth and physical development of all types (commercial, residential, industrial, etc.), including traffic circulation and city services. Specific subject matters within the General Plan are referred to as “elements” of the General Plan.
Gilroy’s most recently adopted General Plan is the 2040 General Plan. Although the General Plan is updated every 20 years, the Housing Element within it must be updated every eight years and submitted for approval, or certification, to the California Department of Housing and Community Development (HCD).
The due date for approval by HCD for this cycle was Jan. 31. On Jan. 27, Gilroy received our first notification that HCD found insufficiencies in the detail we provided to adequately demonstrate our compliance and cooperation with statewide housing production goals in various categories of housing. The City Council approved the revised Housing Element on May 1 and city staff submitted it on May 8 for HCD’s 60-day review. On July 6 we received a list of HCD comments asking for additional language to clarify current and planned efforts on housing types and locations that meet state goals. These modifications were minor and fell within the parameters previously approved by the City Council and within the authorization given to staff to address and re-submit.
On Aug. 21, we received official notification that our certification process for this eight-year cycle is now complete.
California Government Code contains a section in the Housing Accountability Act informally known as the “Builder’s Remedy.” The Builder’s Remedy is based on the assumption that local jurisdictions are denying housing projects proposed by developers. As the name suggests, Builder’s Remedy refers to what a housing developer can do to remedy a situation where a local jurisdiction may be resisting housing developments. Among other circumstances that may suggest resistance to housing, this section of State law also points to the lack of a certified Housing Element as one criterion that may be indicative of resisting development. Consequently, while a jurisdiction’s Housing Element is pending certification beyond the original due date (Jan. 31 for this eight-year cycle), Builder’s Remedy affords housing developers an opportunity to submit applications that are not necessarily consistent with a city’s existing zoning. For example, a builder may submit plans to construct single-family homes in an area zoned for high density housing, or in an area not zoned for housing at all.
Whether or not a builder can successfully assert Builder’s Remedy for purposes of proceeding with their housing development plans is a legal question that depends on all of the facts and circumstances surrounding the issue. It is not solely based on the date upon which Housing Elements are certified. Unfortunately, the nature of the Builder’s Remedy section and the questions that it raises make it difficult to avoid jumping to conclusions that alarm the public.
Housing projects citing Builder’s Remedy have been filed in several jurisdictions across the State and in Santa Clara County. As of Aug. 13, Gilroy received two preliminary applications citing the use of “Builder’s Remedy,” and no others since. No action is taken on a preliminary application except to determine if it is complete. Once a preliminary application is determined to be complete, an applicant has 180 days to submit a formal application, or the preliminary application will expire. To date, no formal applications have been received. When and if a full formal application is received, the City will perform a detailed review of the proposed project, including whether the “Builder’s Remedy” avenue may or may not apply.
It is worthy to note that Gilroy’s Housing Element is a substantial document that reflects our policies that embrace housing development applications that meet our General Plan criteria and help us reach housing need allocations.
Marie Blankley, CPA is the mayor of Gilroy.
