The Builder’s Remedy

The Builder’s Remedy (Gov. Code § 65589.5(d)(5)) allows housing projects to bypass local zoning in cities that are out of HCD housing element compliance. The threshold: the project must provide at least 20% of units affordable to lower-income households, or be 100% affordable.

The city cannot use zoning non-conformity, density limits, height limits, or neighborhood character to deny or condition the project. The city retains authority to apply objective health and safety requirements and genuine building code conditions.

Which Cities Qualify

Cities out of housing element compliance are publicly identified by HCD — the compliance list is updated regularly at hcd.ca.gov. The Builder’s Remedy does not override CEQA for discretionary aspects, objective design review applied uniformly, or proportionate impact conditions backed by evidence.

Strategic Impact

The Builder’s Remedy changes the negotiating dynamic entirely — the developer notifies the city that the project qualifies for state protection and the city’s discretion is severely constrained. Cities facing a Builder’s Remedy application with counsel behind it process projects far more cooperatively.