Housing Element: Could Santa Barbara Be in Danger of ‘The Builder’s Remedy’?

As the February 15, 2023, deadline approaches for local governments to submit their revised Housing Element drafts to the California Department of Housing and Community Development (HCD) for certification, the terms “builder’s remedy” and “use by right” have been used more frequently. And now that the County of Santa Barbara and the City of Carpinteria have announced that they will likely fail to meet that February deadline to submit their plans, questions arise as to what exactly these terms mean and what the repercussions are of losing state certification.

As readers may recall, California’s “Housing Element” is a law that, according to the HCD website, requires all local governments both at the city and county levels to “address the housing needs and demand” of residents and specifically that they “adopt plans and regulatory systems that provide opportunities for — and do not unduly constrain — housing development.” For the upcoming eight-year housing element cycle, the county must prove it can — at least on paper — accommodate the state’s allocation of 24,856 units of housing by 2031; the City of Carpinteria is on the hook for accommodating 901 of those units, while the City of Santa Barbara has been allocated 8,001 for the same cycle.

During the December 5 meeting of the Carpinteria Planning Commission, Chair Jane Benefield was shocked to learn that the city was on course to miss the deadline and could potentially be subject to the “builder’s remedy” — which would essentially tie the hands of local review boards on projects that met certain objective standards, regardless of whether the project meets specific zoning guidelines. Put simply, if a city or county government does not have a certified housing element in place after February 15, it could mean they lose the ability to stop a housing project that would normally be denied.