The City of Santa Monica has reached a legal settlement with the developer that proposed using the builder’s remedy for 14 different projects totaling about 4,000 housing units.
Under the settlement, WS Communties will withdraw all 14 project applications and resubmit applications for most of them under the city’s new development review process, contained in its housing element, which permits ministerial approval for many projects. WSC may also take advantage of additional development incentives that were included as part of the settlement agreement.
The builder’s remedy has been part of the Housing Accountability Act since 1990 but had never been invoked until WS Communities decided last fall to use it in Santa Monica when the city failed to meet the deadline for adopting a compliant housing element. (For CP&DR’s account of the Santa Monica situation last fall, click here.) Since then, more than 20 builder’s remedy projects have been proposed around the state.
Several cities have pushed back, none more so than Huntington Beach, which filed a federal lawsuit against the state even as the state sued the city over its plans to exempt itself from builders’ remedy. There has also been intense debate over whether and when the builder’s remedy applies, with many cities arguing that the Department of Housing & Community Development does not have to literally certify a housing element for it to be compliant.
In Santa Monica, which faced the most and highest-profile builder’s remedy projects, the city took a different path than Huntington Beach and other cities. The city sought a settlement after obtaining three legal opinions concluding that there was no way Santa Monica could deny builder’s remedy projects.
All of the WS Communities projects would have been 10 stories high, with some projects as high as 18 stories. Though all project applications would be withdrawn, eight could be refiled as-is and conform to Santa Monica’s current code and could be approved along ministerial timelines. Small projects would be processed within 150 days while large projects would be processed in 210 edays. The new administrative review process was approved by the city in April.
“That is lightning turnaround time,” WS Communities’ attorney Dave Rand, told The Real Deal. “And that’s really the point, because the builder’s remedy projects were all going to have to do likely extensive CEQA [reviews] … public hearings, uncertainty of the outcome, likely litigation — and now we’re talking about a permit in hand in maybe 150 to 210 days.” (For an extensive CP&DR interview with Rand on builder’s remedy, click here.)
In the settlement agreement, Santa Monica also agreed to consider the following incentives in the future:
Increasing maximum parking spaces in the Downtown Community Plan area from 0.5 to 1.0 spaces per unit.
Reducing the inclusionary housing requirement from 20% to 15%
Counting offsite affordable housing units toward the density bonus limits.
However, the city committed only to consider – not guarantee – approval of these additional incentives.
The City Council agenda package dealing with the settlement can be found here.