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As of January 31st, the deadline for many Bay Area cities and counties to adopt legally compliant Housing Elements now has passed, and many jurisdictions remain without certifications from the California Department of Housing and Community Development ("HCD") that their 6th Cycle Housing Element Updates ("6th Cycle") substantially comply with state law. As such – and until HCD certifies that these housing elements substantially comply – the Housing Accountability Act's ("HAA") "Builder's Remedy" is now available in a range of Bay Area jurisdictions.
Additionally, under Assembly Bill 1398 ("AB 1389"), should these jurisdictions fail to obtain HCD's determination of substantial compliance within 120 days of the deadline (or May 31, 2023), these jurisdictions will be required to rezone the candidate sites identified in the 6th Cycle before HCD can find the 6th Cycle in compliance with the Housing Element Law. Therefore, Bay Area developers may soon have at least two remedial options that would provide much needed leverage in for their housing projects.
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