The Troubling Housing Issue in Solana Beach that My Opponent is Not Discussing
With lots of talk about how housing mandates are inundating our city, many people don’t realize that our state-required General Plan lacks a key section: the legally required Housing Element. Currently Solana Beach is OUT of compliance along with our neighbor Del Mar, as well as a number of other cities in the region and the state. This means a developer could submit plans for a residential development that does not comply with local zoning or our carefully prepared general plan, and Solana Beach would be powerless to deny the development.
Why is being in compliance so important?
Under California law, developers of affordable housing projects may bypass the zoning code and general plan of cities that are out of compliance. For the development to qualify, 20% of the units in the project must be affordable to lower-income households, or 100% affordable to moderate-income households. This aspect of state law that allows developers to bypass a big batch of our city’s requirements is called the Builder’s Remedy.
Is anyone actually bypassing local housing laws by using the Builder’s Remedy?
Several California cities are experiencing the reality of Builder’s Remedy. For example, Santa Monica was out of compliance, and builders jumped in and submitted plans to build 3,968 undeniable units! This includes 15-story, 12-story, and 11-story residential buildings! Santa Monica cannot deny a Builder’s Remedy project even when it doesn’t comply with local zoning or the general plan, unless it can show a threat to public health or safety - a very high bar. Read more in the Santa Monica Daily Press.
It looks like this is happening in Del Mar as well. A developer is proposing a 259-unit apartment complex on the empty lot across from the Brigantine, by dog beach, that includes 85 subsidized apartments. The proposed development has nine buildings, some up to four stories, and a two-story parking podium/garage. The developer claims, like those in Santa Monica, that as Del Mar is out of compliance, Del Mar must approve the housing project. Read more in the San Diego Union Tribune.
What could this mean for Solana Beach?
A developer could submit plans for a residential development that does not comply with local zoning or the general plan, and Solana Beach would not be able to deny this plan. Even when Solana Beach addresses the deficiencies in its Housing Element and the State certifies that they are IN compliance, Builder’s Remedy plans submitted when the city was out of compliance cannot be denied!
What could be built in Solana Beach using the Builder’s Remedy?
This is pretty unclear to be honest. There is a lot of conversation around exactly how much could be built under Builder’s Remedy. While many sources believe builders could submit plans up to the maximum allowable residential density for that parcel, it’s crystal clear that currently Solana Beach has no control over review and approval of residential developments if the required percentage of the development is deemed affordable. This means no View Assessment process, no height limits, no setbacks, and no City Council review.
How did we get to this point?
Solana Beach City Council has not submitted a Housing Element to the State Housing & Community Development agency (HCD) that was approved. As recently as August 25, 2022, HCD sent the city a letter inquiring about the status of the city’s housing element and noting that the city is still out of compliance. The letter also set a deadline of September 25, 2022 for the city too obtain compliance yet here we are in mid October and the city is still listed as out of compliance on HCD’s website.
What are other possible consequences of being out of compliance?
HCD’s August 25, 2022 letter to the city listed the following possible consequences.
solana-beach-HENC-LOI-082522
.pdf
Download PDF • 168KB
Among other things, the city may no longer be able to receive state funds related to:
Permanent Local Housing Allocation Program
Local Housing Trust Fund Program
Infill Infrastructure Grant Program
SB 1 Caltrans Sustainable Communities Grants
Affordable Housing and Sustainable Communities Program
HCD also said it may notify the California Office of the Attorney General, which may bring suit for violations of State Housing Element Law. Possible court-imposed penalties for persistent noncompliance run up to $100,000 per month - with a minimum fine of $10,000 per month. In some circumstances, a court is permitted to multiply the penalty by 6 times!
Lastly, HCD reiterated that the Builder’s Remedy is currently an option for developers in Solana Beach, confirming that a developer that meets the affordable housing minimums, may not be subjected to the city’s zoning and many other land use rules. In other words, what is happening in Santa Monica could happen in Solana Beach.
Why are we just learning about this now?
That is an excellent question. It’s shocking just how far the city has let this drag on, how much impact on our quality of life the city is willing to risk by abdicating all local control over residential development. Also disturbing, the city doesn’t seem to care about the massive financial consequences at stake.
After reading this article about what is going on in Santa Monica, I did a little digging and quickly realized that because Solana Beach is out of compliance, this could happen to us too.