Builder’s Remedy in California: Eligibility, Density, and Denials

The builder’s remedy in California is a provision of the Housing Accountability Act, codified at Government Code Section 65589.5, that removes a city or county’s power to deny a qualifying housing project when the jurisdiction has failed to adopt a housing element the state has certified. AB 1893, effective January 1, 2025, rewrote much of how the remedy operates, adding density caps, three defined affordability tiers, and site restrictions that did not exist under the older version.¹

When a Jurisdiction Becomes Vulnerable

Every California city and county must adopt a housing element as part of its general plan, showing how it will accommodate housing at all income levels. The California Department of Housing and Community Development reviews each plan and certifies whether it meets state standards.² A jurisdiction falls out of compliance either by missing the statutory adoption deadline or by submitting a plan HCD rejects.³

The moment compliant status is lost, the builder’s remedy window opens. During that window, the local government cannot use its zoning, density rules, or general plan designations to block a qualifying project. The window closes only when HCD issues a letter certifying the housing element is in substantial compliance. Developers track this status through HCD’s online compliance dashboard.

Affordability Tiers a Project Must Meet

AB 1893 replaced the older affordability thresholds with three categories. A project qualifies for the builder’s remedy if it fits any one of them.

Mixed-Income Projects

The mixed-income path is the common route for market-rate developers, since most of the project can be rented or sold at market prices. The project must include at least one of the following: 7 percent of units for extremely low-income households, 10 percent for very low-income households, or 13 percent for lower-income households.⁴ A separate option covers small projects of 10 or fewer units on sites under one acre, built at a minimum density of 10 units per acre.

100 Percent Affordable Projects

A 100-percent lower-income project dedicates every unit, excluding manager units, to households earning no more than 80 percent of area median income. A 100-percent moderate-income project rents or sells every unit to households earning between the lower-income limit and 120 percent of AMI.⁵ Both require a recorded deed restriction lasting 55 years for rentals and 45 years for ownership units.¹

Density Caps

The pre-2025 version of the builder’s remedy had no explicit density cap, which led to proposals far denser than local zoning contemplated. AB 1893 set a formula-based ceiling. Before any density bonus, a project cannot exceed the highest of three benchmarks: 50 percent above the minimum density HCD deems appropriate for that jurisdiction, three times the density allowed under the general plan or zoning (whichever is greater), or the density specified in the jurisdiction’s own housing element.⁴

Sites near transit or in high-opportunity areas get more room. If any portion of the site sits within half a mile of a major transit stop, in a very low vehicle travel area, or in a high-resource census tract on the state opportunity map, the density ceiling rises by an additional 35 units per acre. In suburban jurisdictions where base zoning might allow only 10 to 15 units per acre, that is a substantial increase.

The law also imposes floors in some situations. On sites near a commuter rail or heavy rail station, the project must meet at least the local minimum density. On other sites with a minimum density requirement, the project must meet the lower of the local minimum or half of HCD’s deemed-appropriate density for that jurisdiction.

Which Sites Are Eligible

Not every parcel qualifies. AB 1893 added site-level screens that apply regardless of affordability or density:

Sites zoned for agriculture or resource preservation, if bordered on at least two sides by land actively used for those purposes, can be denied.⁴
The site cannot border a parcel where more than a third of the building area has been used for heavy industrial or Title V industrial purposes within the last three years.¹
Sites in a very high fire hazard severity zone face additional restrictions.
A city can deny a project if adequate water or wastewater service cannot be provided.

Mixed-use is allowed, but the residential component must make up at least two-thirds of new or converted square footage. Projects of 500 or more residential units can qualify with as little as 50 percent residential square footage. Hotels and similar transient lodging do not count toward the residential portion.¹

Locking In Rights With a Preliminary Application

Filing a preliminary application before a city regains housing element compliance is what preserves builder’s remedy protections for the project. The preliminary application was created by the Housing Crisis Act of 2019 (SB 330) and extended through January 1, 2030 by SB 8.⁶

Every local planning department must make a standardized form available. It collects the site location and boundaries, total unit count, project density, chosen affordability tier, existing site conditions such as protected species or historical structures, and basic architectural details including floor plans and elevations. The developer submits the form with the jurisdiction’s processing fee.

Once the city accepts the preliminary application and fee, the project vests. The city must evaluate it under the rules in effect on the submission date, not any standards adopted later. The developer then has 180 calendar days to submit a full formal application to keep those vested rights.⁷ Missing that deadline can jeopardize vesting entirely.

How Cities Can Review and When They Can Deny

A city reviewing a builder’s remedy project may apply only objective standards. The Housing Crisis Act defines “objective” as involving no personal judgment by a public official and verifiable against an external benchmark available to both applicant and reviewer before the application was filed.⁶ Height limits, setbacks, and parking ratios qualify. Subjective design review does not.

Even objective standards have a limit. A city cannot apply any standard, or combination of standards, that would render the project financially infeasible or prevent it from being built as proposed after any density bonus the developer is entitled to.⁴ Most disputes turn on the cumulative effect of stacked conditions.

Outright denial is allowed only on narrow grounds, and the city must produce written findings supported by a preponderance of the evidence:

The project would cause a specific, quantifiable, direct, and unavoidable impact on public health or safety, and no feasible mitigation exists that would keep the project affordable.
Denial is required to comply with a specific state or federal law, and no compliance path exists that preserves affordability.
The site is zoned for agriculture or resource preservation and surrounded on at least two sides by land in that use, or it lacks adequate water or wastewater service.

Vague concerns about neighborhood character, traffic, or community opposition do not satisfy these findings. The specific adverse impact standard requires the city to point to a written, pre-existing public safety standard the project would violate.

If a city thinks a project is inconsistent with applicable standards, it must give the developer written notice within 30 days for projects of 150 units or fewer, or 60 days for larger projects, measured from when the application is deemed complete. If the city misses that deadline, the project is automatically deemed consistent with all applicable local requirements.⁸

CEQA and Environmental Review

Builder’s remedy projects are not automatically exempt from the California Environmental Quality Act. Under Public Resources Code Section 21080.66, a housing project on a site of four acres or less can qualify for a statutory CEQA exemption if it meets the other eligibility criteria. Larger projects must go through some level of environmental review.⁹

The four-acre cap is specific to builder’s remedy projects. Other housing developments not using the builder’s remedy can claim the same exemption on sites up to 20 acres. Projects that do require environmental review are still evaluated against objective standards, which limits a city’s ability to use CEQA as a backdoor to a subjective denial.

Penalties When a City Wrongfully Denies

Courts have real enforcement tools. If a court orders a local agency to comply with the Housing Accountability Act and the agency fails to do so within 60 days, the court must impose fines of at least $10,000 per housing unit, counted as of the date the application was deemed complete.⁴ For a 200-unit project, that baseline is $2 million.

If the court finds the city acted in bad faith, those fines multiply by five. Repeated violations within the same planning period trigger additional multipliers on top of that. Fines are deposited into a local housing trust fund or the state’s Building Homes and Jobs Trust Fund rather than paid to the developer, but the exposure is enough to push most disputes toward settlement.

Transition Rules for Applications Filed Before 2025

AB 1893’s new requirements apply to applications deemed complete on or after January 1, 2025. Projects deemed complete before that date get a choice. The developer can proceed under the rules that existed when the preliminary application was submitted, or, if the project meets the new builder’s remedy definition, opt into any or all of the post-2025 provisions.¹

Developers who filed before 2025 with projects that did not qualify under the old rules have an additional option. They can revise the application to meet the new definition even if the revision changes unit count or square footage by 20 percent or more. Under normal vesting rules, a change that large would reset the vesting date. The transition provision overrides that limitation for developers voluntarily converting to builder’s remedy status.

Recent Court Decisions on Overlay Zoning

Courts have started clarifying how the builder’s remedy interacts with creative local zoning strategies. In New Commune DTLA LLC v. City of Redondo Beach (2025), the Second District Court of Appeal struck down an overlay zoning scheme that allowed residential development but did not require any minimum amount of it. The court held that an overlay merely permitting housing, without minimum density or residential use requirements, cannot satisfy housing element law, meaning the city’s housing element was not in substantial compliance and the builder’s remedy remained available.

In an earlier case, Martinez v. City of Clovis (2023), the Fifth District Court of Appeal rejected an overlay zone that allowed but did not mandate a density of at least 20 units per acre for housing element sites. Both decisions signal that optional overlay zones cannot paper over non-compliance and shut the builder’s remedy window.

1
California Legislative Information. AB 1893 – Housing Accountability Act
2
California Department of Housing and Community Development. Housing Elements
3
California Department of Housing and Community Development. Housing Element Compliance
4
California Legislative Information. California Government Code GOV 65589.5
5
California Legislative Information. California Health and Safety Code 50093
6
California Legislative Information. SB 8 – Housing Crisis Act Extension
7
LegiScan. California Senate Bill 330 – Housing Crisis Act of 2019
8
California Department of Housing and Community Development. Housing Accountability Act Technical Assistance Advisory
9
California Department of Conservation. 2026 CEQA Statutes and Guidelines