The Certification Process
Gilroy first submitted our Housing Element to HCD for their 90-day review on Oct 31, 2022, after receiving input from the community, the Planning Commission, and the City Council. The State had until January 29, 2023 to respond. On January 27, 2023, we received from HCD a list of comments to address. In general, these comments referred to insufficiencies in the detail we provided to adequately demonstrate our compliance and cooperation with statewide housing production goals in various categories of housing. On May 8, 2023, following City Council adoption on May 1, 2023, city staff submitted our Housing Element for HCD’s 60-day review. On July 6, 2023, we received a list of HCD comments aimed primarily at additional language to clarify our current and planned efforts on housing types and locations that meet state goals.
The Housing Element is a document of over 300 pages. To see it in its entirety, or to see the highlighted changes as a result of the July 6, 2023 HCD comments, click here. These minor clean-up modifications are within the parameters already approved by the City Council and within the authorization given to staff to address changes requested by HCD to achieve certification and to submit them to HCD. City staff have discussed the modifications with HCD staff and believe that the modifications will lead to expeditious certification of our Housing Element.
Builder's Remedy
California Government Code contains a section in the Housing Accountability Act known informally as the “Builder’s Remedy.” Builder’s Remedy is based on the assumption that local jurisdictions are denying housing projects proposed by developers. As the name suggests, Builder's Remedy refers to what a housing developer can do to remedy a situation where a local jurisdiction may be resisting housing developments. This section of State law provides that if a Housing Element is not fully compliant with state law beyond the original due date (January 31, 2023 for this 8-year cycle), developers may submit applications for housing projects that are not necessarily consistent with a city's existing zoning or general plan. For example, a builder may submit plans to construct single-family homes in an area zoned for high density housing, or in an area not zoned for housing at all.
Whether or not a builder can successfully assert Builder’s Remedy for purposes of proceeding with their housing development plans is a legal question that depends on all of the facts and circumstances surrounding the issue. It is not solely based on the date upon which Housing Elements are certified. Unfortunately, the nature of the Builder’s Remedy section and the questions that it raises make it difficult to avoid jumping to conclusions that alarm the public. Builder’s Remedy projects have been filed in several jurisdictions across the State and in Santa Clara County. As of August 13, 2023, Gilroy has received two preliminary applications citing the use of the “Builder’s Remedy.” No action is taken on a preliminary application, other than to determine if the preliminary application is complete. Once a preliminary application is determined to be complete, an applicant has 180 days to submit a formal application, or the preliminary application will expire. To date, the City has received no formal application. Only when a full formal application is received can the City perform a detailed review, including the “Builders Remedy” parameters.
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