Definition
The builder's remedy is an enforcement mechanism embedded in California's Housing Accountability Act (HAA), Government Code § 65589.5. It allows a developer proposing a qualifying housing project to receive approval despite the fact that the project does not conform to the local government's zoning laws — if that local government's Housing Element is not in substantial compliance with state law.
In plain English: if a city has failed to properly plan for housing, developers can build more than local zoning would normally allow, and the city has very limited grounds to say no.
When the Builder's Remedy Applies
The builder's remedy is triggered when two conditions are both met:
- The Housing Element is non-compliant. The California Department of Housing and Community Development (HCD) must have determined that the jurisdiction's Housing Element does not substantially comply with Government Code §§ 65580–65589.8. A jurisdiction's Housing Element must be updated each RHNA cycle and certified by HCD.
- The project qualifies. The proposed project must either: (a) include at least 20% of its units as affordable to lower-income households, or (b) be exclusively affordable to lower-income households. Projects meeting these thresholds may not be denied based on inconsistency with local zoning or general plan designation.
What the Builder's Remedy Does — and Doesn't — Permit
If both conditions are met, the agency may not deny the project based on:
- Inconsistency with local zoning (density limits, height limits, setbacks, use classification)
- Inconsistency with the general plan land use designation
The agency may still require the project to comply with:
- Objective design standards
- Building code
- Health and safety requirements
- Other objective requirements that do not effectively preclude the project
The builder's remedy does not override CEQA review, though certain housing projects may qualify for CEQA exemptions under AB 130, AB 2011, or other statutory exemptions.
How the Builder's Remedy Has Been Used in Practice
The builder's remedy was rarely invoked before 2021. The 6th RHNA cycle (2021–2029) changed that dramatically. HCD found dozens of California jurisdictions out of compliance with their Housing Elements, and developers responded with builder's remedy applications seeking far more density than local zoning would normally permit — in some cases, buildings ten to twenty times taller than zoning allowed.
Several high-profile cases — including applications in Los Altos, Woodside, La Cañada Flintridge, and Beverly Hills — brought national attention to the mechanism. Courts have generally upheld the builder's remedy as a lawful exercise of state housing preemption authority.
How Cities Can Reduce Exposure
The only reliable way to eliminate builder's remedy exposure is to obtain and maintain a certified, compliant Housing Element. Cities with certified Housing Elements are not subject to the builder's remedy, regardless of density demands. Cities that fall out of compliance mid-cycle — by failing to implement required programs or meet RHNA production obligations — risk renewed exposure even after initial certification.
Builder's remedy exposure is not a one-time risk — it recurs every RHNA cycle and can re-emerge if Housing Element programs are not implemented. Legislaide's compliance monitoring helps cities track their ongoing HCD certification status and RHNA production obligations.
Frequently Asked Questions
What is the builder's remedy?
The builder's remedy is a provision of California's Housing Accountability Act (Government Code § 65589.5) that allows qualifying housing developers to receive approval for projects that don't conform to local zoning — if the city's Housing Element is not in substantial compliance with state law.
When does the builder's remedy apply?
Two conditions must both be met: (1) HCD has determined the jurisdiction's Housing Element does not substantially comply with state law; and (2) the project includes at least 20% affordable-to-lower-income units, or is 100% affordable to lower-income households.
What can a city still require from a builder's remedy project?
Even under the builder's remedy, cities may still require compliance with objective design standards, building code, health and safety requirements, and other objective standards that do not effectively preclude the project. Subjective standards and general plan or zoning inconsistency cannot be the basis for denial.
How has the builder's remedy been used in practice?
Before 2022, the builder's remedy was rarely invoked. The 6th RHNA cycle changed this dramatically — developers filed applications in dozens of non-compliant jurisdictions including Beverly Hills, Los Altos, and Woodside, sometimes proposing buildings far taller than local zoning contemplated. Courts have generally upheld the mechanism.
How can a city eliminate builder's remedy exposure?
The only reliable method is to obtain and maintain HCD certification of a compliant Housing Element. Cities with certified Housing Elements are not subject to the builder's remedy for new applications. Maintaining compliance throughout the cycle — including implementing required programs — prevents re-exposure.
Published April 1, 2026 by Legal Team at Legislaide.