A potential legal situation is brewing in San Jose, where officials have been rejecting housing proposals filed under the builder’s remedy provision. According to land use experts, San Jose is likely to wind up in court.
Builder’s remedy is a provision of the Housing Accountability Act, which says cities that fail to approve state-mandated housing plans lose their zoning authority over projects with an affordable housing component. The Silicon Valley city was subject to the provision last year after failing to get state approval for its housing element.
San Jose is no longer out of compliance. It received certification for its housing element on Jan. 29. However, the city argues it actually came under compliance on June 20 when that housing element was approved by the city council. Consequently, the city is canceling projects that were filed under builder’s remedy after June 20, 2023. It recently rejected 14 different housing proposals filed in the second half of last year.
Who decides when a city becomes compliant with state housing law? The state believes it has that authority. But San Jose officials have pointed to a 2007 state appeals case that states the Department of Housing and Community Development’s determinations are advisory.
In the case of San Jose, a court may have to decide.