August 17, 2023.

Ver el enfoque mensual en español

August 2023 Spotlight: The Housing Element

Hello Gilroy!


By now you’ve likely heard chatter about cities who have or have not had their “Housing Element” certified and talk of “Builder’s Remedy” that may ensue. I’d like to explain what these terms mean and where Gilroy stands in the process. A Housing Element refers to a specific portion of a local jurisdiction’s General Plan, a 20-year document that spells out the long-term framework for Gilroy’s physical development and future growth and development goals of all types (commercial, residential, industrial, etc.). The General Plan addresses everything related to development, including traffic circulation and city services. Specific subject matters are referred to as “elements” of the General Plan. Gilroy’s most recently approved General Plan is the 2040 General Plan, and in it is the Housing Element that sets forth the City’s overall housing objectives in the form of goals, policies, and programs. While the General Plan is updated every 20 years, the Housing Element (for all local jurisdictions statewide) must be updated every 8 years and submitted for certification to the California Department of Housing and Community Development (HCD). Gilroy is one of 212 jurisdictions in the State (40%) whose Housing Element was still pending certification as of June 30, 2023. Many of these jurisdictions had Housing Elements due in 2021 and 2022, while Santa Clara County and other Bay Area jurisdictions had a due date on January 31, 2023. 


I am dedicating this Spotlight to explaining where we are in this certification process and how “Builder’s Remedy” may come into play during the certification process. As always, the next Conversation & Coffee with the Mayor will elaborate on what you read here and offer an opportunity for questions and more detailed information. Please join me and Community Development Director Sharon Goei on Saturday, September 9 at 9:30am in Council Chambers. All are invited!



Mayor Marie Blankley, CPA 

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.