Commentary: The State Needs a Bigger Stick Than Builder’s Remedy

By David M. Greenwald
Executive Editor

Davis, CA – Senator Scott Wiener put a lot of capital into passing SB 423.  Despite the Builder’s Remedy being somewhat controversial, SB 423 which extended SB 35, pretty much sailed through on 61-8 and 27-7 votes in the Assembly and Senate respectively.

Wiener in September argued, “SB 35’s streamlined approvals have proven to be enormously successful at increasing affordable housing production in communities failing to keep pace with their housing goals—helping develop over 18,000 units of affordable housing.”

But our own experience in Davis shows how the Builder’s Remedy is largely ineffective in places like Davis.

In April, the state placed Davis under Builder’s Remedy.  This was due to the city failing to get their Housing Element approved in time.

As we reported at the time, in theory this would restrict the city’s ability to reject housing proposals, but in practice, it is not going to impact many proposals.

One of the problems is the relatively high 20 percent requirement for affordable housing.  As it turns out, just one of the downtown projects applied under the Builder’s Remedy.  That was the one at the old theater at 4th and G.

The site is filed as a preliminary application pursuant to the Housing Crisis Act of 2019, but also as a Builder’s Remedy project with 20 percent affordable.

The Builder’s Remedy is not a huge advantage for those projects, because there is already a streamlined approval process available to them under the newly approved Davis Downtown Plan.

The only other project that is contemplating Builder’s Remedy is Palomino Place.  That’s a lot more complicated.  While Palomino is both in the city and surrounded on three sides by urban development, it is also a Measure J parcel and so in order to get approval, the developer may end up attempting to do so through litigation.

The problem for the Builder’s Remedy in Davis is that the parcels have to be infill.  And infill sites are scarce.

But in December Mayor Will Arnold noted that the council was charged to focus on infill sites.

“That’s not an accident,” he said.  “We recognize the hurdle that Measure J produces to consider any site outside of our existing city limits.”

But he added, “I would just say to those who have said that we will be able to meet our next RHNA cycle numbers without going outside of the city limits. I suggest they tune in or watch the recording of this meeting as we really try to meet our current requirements simply with infill and the difficulty we’re having in doing so.”

The reality that the city of Davis is facing is that Builder’s Remedy appears to have virtually no impact on local housing.  In fact, the city is begging any one who owns a parcel to submit an application.  They were upset that two church sites pulled out of having their sites considered for housing.

As Councilmember Bapu Vaitla put it, “every time we discuss peripheral proposals, there’s a surge of public comments around we need to optimize infill. And then when we get to infill, it’s always like, well, we can’t quite do as much. We won’t do as much as we can. And then that bounces the problem back to peripheral and the net result is a housing crisis that never ends and the net result is a housing element that doesn’t get certified again and again and again.”

Vaitla warned that “the buffer is rail thin right now.”

The city council is largely not the barrier to housing in Davis.  Instead, it’s a block of citizens who have been able to block housing in a number of ways, particularly through Measure J.

As such, the Builder’s Remedy is not really a stick as far as cities like Davis are concerned.

The real stick is going to be if the state makes a move to go after Measure J.  Thus far, that doesn’t seem to be motivating citizens to change their approach to land use.  The battle for the 2025 project, Village Farms, still appears to be business as usual.

If the state is serious about ending the housing crisis, however, they are going to have to think outside of the Builder’s Remedy box, and starting to go after some of these land use growth control measures seems like a good place to start.

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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