CA: Builders Remedy, SB 9, Housing Element and the threat of enforcement

Rancho Palos Verdes is in the south west corner of Los Angeles County, right next to Rolling Hills Estates. According to a blog I found by googling its name, “RPV is known for its breathtaking ocean views, luxurious homes, and serene environment, AND has been named the richest retirement town in the country.” 

Like every other CA locality, they had to prepare a housing element, which they did do. They also got it certified! To get their certification, they committed to upzone several parcels of land around the city to allow for multifamily housing.

They did the upzoning (nice work!), a developer bought one of the sites, submitted an application to build housing and ….. Some neighbors freaked out. They pressured the city to stop processing this project, and lobbied the City Council to take several more sites off of their site inventory. 

The whole point of the site inventory is for the city to make a list - an inventory - of sites that are available for housing to be built! The city says, “look, HCD and world, these are the places where we would like housing to be built.” But in Rancho Polos Verdes, when it became apparent that housing was on its way to actually being developed, some community members began to act like there was some kind of unexpected emergency.

The city council decided they wanted to remove three specific sites from the state-certified site inventory, including of course the one with a housing proposal on it. City staff prepared a revised draft housing element reflecting these removals and submitted it to HCD for formal review - and HCD agreed to allow the city to remove these sites.

We - YIMBY Law and Californians for Homeownership - wrote to them on March 17, 2025 in advance of their first City Council hearing on the proposal to remove the sites. That letter was effective - the City Council decided not to move forward at that time. They punted and decided to meet again on June 3rd. On June 2, 2025 we wrote to them again, warning them that despite HCD’s blessing, removing these sites from their site inventory would invalidate their housing element and lead them to be vulnerable to the builders remedy. 

At the June 3rd hearing, thanks to the threats of legal action by YIMBY Law and Californians for Homeownership, the city ultimately decided they didn’t trust HCD’s approval enough to risk litigation, or to open up even the possibility of having to approve more builders remedy projects in their city. 

The June 3 hearing really was a delight for 3rd party housing enforcement. We copied some of the comments below, with the timestamp. 

Youtube link: RPV City Council Meeting - June 3, 2025

02:19:15 Sharon Yarbor, "I have said before I'll say it again I think it's a crying shame that this property was ever included in the housing element in inventory. I wish it had never been. I'd love to see it pulled out. However I have some very grave concerns about what the ramifications will be if we take it out of the housing element. 

“HCD has said, ‘You can take it out, you don't need all of the these properties to meet your arena needs.’ However, I think there is a possibility - and I don't know how great or small that possibility is - that there could be a determination that because we are withdrawing … the request for the Coastal Commission to review the amendment to the LCP that we would be violating in some way some provisions and God knows there's a lot of them in the housing act putting us at jeopardy for builders remedy. 

“That to me is a hill I would die on. I do not want there to be a cintillaa of risk of reopening the door. And I'd like assurance from the council, from the city attorney, [and] the city of staff that there's no way on God's green earth that if we do this [that the] builder's remedy could come back to bite us in the butt. That is the worst thing that could happen, worse than having this project...I'm gravely concerned, and I don't know if you can assuage those concerns. If you can, please do, because I think there are a whole bunch of people that would like to have those concerns assuaged"

The city could not assuage her concerns. Here’s the Mayor,

02:21:00 "Thank you Sharon. I'll ask the city attorney to opine but my guess is that we can't assuage anybody's concern of any current or future legal action based on what we do tonight"

I believe the city attorney, then responds, "Amen. True. True."

And the mayor goes on to say, at 02:21:19, "So unfortunately I mean we are in a very difficult position."

Councilwoman Ferraro expressed her strong feelings about the alternative, stating around the 2:35:45 mark: "I mean it's really onerous and it's not something that we can go back to. We don't dare right now."

Mayor Pro Tem Promo was even more explicit about the financial and legal risks. He was also extremely skeptical of HCD’s letter having any weight in court. In a rarity for city council members, he understood that courts interpret the law, and HCD can be wrong. at 2:37:00:

"And that letter that you guys saw that says ‘Hey you can pull it out and do all that kind of stuff.’ I don't put too much weight behind it because that person is not the person that's going to be determining it in the courtroom. And I don't give it any legal significance that somebody at HCD pencil whipped it and said ‘Hey you guys can pull it off,’  [because] the city attorney was saying  ‘… you got this issue already that somebody filed and has this application….’ 

“The city's in a really bad position in terms of finances right now... We can't afford in the next couple months and next year to pay out... to try to settle lawsuits that we get from God knows who... about some housing element approval that we did not do or we took out from zoning. That's just the reality of it. 

“And we're going to get hit with those applications and those lawsuits. It's just inevitable if we pull it out." 

The Mayor Pro Tem added that losing compliance could mean "all of our authority taken away from us and at that point all bets are off... If we get builder's remedies we can't touch them." He referred to the current approved housing element status as a "shield."

The City Attorney reinforced this concern, noting around 2:41:07: "We are currently involved in four litigations in which property owners attempted to submit builder's remedy applications during that period of time that the housing development was not approved by HCD... the exposure to builder's remedy is not something to be taken lightly."

Councilman Parisam summarized the difficult choice around 2:45:45 saying he has to make decisions with his "head" over his "heart" due to the state's actions. He spoke of the lack of trust in HCD and the risk of vulnerability, calling it "two bad options." He stated around 2:45:45: "I'm left with having to make decisions with my head. Two things that we're discussing, which are before us tonight are risk and trust... I share that lack of trust [in HCD’s Assurances] and I share [the concern] that if there's a door to be opened and walked through it's going to happen because it's happening throughout the state of California …."

In addition to being concerned about the builders remedy, electeds wanted to avoid SB 9 being applicable on site inventory sites. This would be the outcome if they went through with taking the sites off the site inventory. As long as the sites had multifamily zoninging, they weren’t subject to SB 9. Mayor Bradley called it the "worst of two evils," [02:48:10] acknowledging the significant drawbacks of the SB 9 scenario and ultimately leaning towards retaining the current zoning due to the loss of control under SB 9 if the site reverted to its old, pre-site inventory zoning.

Despite many public comments urging the council to revert to the original zoning and challenging the legal interpretations, the council ultimately voted to retain the existing Housing Element zoning for all three sites and direct staff to proceed with the necessary steps for Coastal Commission review of the proposed housing. The motion passed with a 5-0 vote.

The decision highlights the pressure state housing laws place on local jurisdictions, often forcing cities into difficult choices driven more by the fear of legal consequences and losing control entirely, rather than what might be preferred locally. But make no mistake: this was a win for housing, and showed the power of threats of third party enforcement in convincing cities to allow housing proposals to move forward.