The builder’s remedy, a provision of state housing law that allows some residential developments to bypass local zoning, is threatening to create sprawl development that will destroy hillsides and farmland in Santa Clara County. This development would pave over open space, increase greenhouse gas emissions, and put residents at risk of flooding, wildfire, and landslides. We believe these proposals fail the criteria required by the builder’s remedy, and should be denied.

What is the “builder’s remedy”?

State law requires cities and counties to adopt plans for accommodating future residential growth, known as Housing Elements. The builder’s remedy is a provision in state law that requires cities and counties that do not have substantially compliant Housing Elements to approve certain types of residential and mixed-use projects, even if those developments conflict with local zoning laws. A full description of the builder’s remedy can be found on the Association of Bay Area Governments (ABAG) website.

Limits to the builder’s remedy

There are limits to what the builder’s remedy will allow. The builder’s remedy does not apply if the development would be located on farmland or open space partly surrounded by other farmland or open space, or if there is not adequate water or sewer service for the project. (The exact language in the statute is “land zoned for agriculture or resource preservation that is surrounded on at least two sides by land being used for agriculture or resource preservation, or which does not have adequate water or wastewater facilities to serve the project.”)

Developers’ proposals ignore protections for farmland and requirements for adequate water and sewer services

Despite this limitation, developers are attempting to push through multiple sprawl development projects on farmland and hillside open space. Examples of these projects include:

• A project for a 113-lot single-family subdivision in the rural Hecker Pass area of western Gilroy, located on land zoned for agriculture that’s surrounded on three sides by more agricultural and open space land.
• A project for a 256-unit subdivision located on the site of the popular Andy’s Orchard just outside of Morgan Hill city limits, which is on three parcels zoned for agriculture, with agricultural land bordering each parcel on at least two sides.
• A project for a 230-unit subdivision plus an 80-room hotel located on the site of Mountain Winery near Saratoga – steep, forested land that’s zoned for hillside protection and is surrounded by similarly zoned land.

These proposals, and others like them, must be rejected as failing to comply with the criteria of the builder’s remedy.

The requirement that builder’s remedy parcels must have adequate water and wastewater facilities to serve the project is likely to be extremely difficult for all of these projects to prove. It will not be enough for a developer to argue that they could potentially request connections to water and sewer lines, or apply for permits for onsite wastewater treatment systems. The plain language of the statute requires that there be existing water and wastewater facilities in place. Furthermore, the word “adequate” in the statute implies that it’s not enough to have just any water and wastewater facilities – the developer needs to show that these facilities can accommodate the size of the proposed project. Any builder’s remedy project that fails to show that the parcel has adequate water and wastewater facilities to serve the project must be rejected.

Finally, there is uncertainty around what it means to have a “substantially compliant” Housing Element and whether this determination is made by the state of California or by the courts. There will likely be lawsuits on this issue.

Sprawl hurts wildlife habitat, climate resilience, farmland, and communities

Sprawl development like this is not allowed under local land use laws because it’s damaging in multiple ways. When new residential growth sprawls onto open space rather than being concentrated in urban areas, this destroys farmland and wildlife habitat, increases greenhouse gas emissions and traffic congestion, and is costly for taxpayers.

Finally, putting residential development on parcels like these puts people in harm’s way. Several of the builder’s remedy projects that have been proposed in Santa Clara County are in FEMA flood zones, high wildfire hazard areas, or landslide hazard zones.

Sprawl development is incompatible not only with local land use planning, but with state-level laws and policies as well, including housing laws. The various state bills in recent years providing streamlined approval processes for certain types of residential developments have typically excluded parcels on environmentally sensitive land or that are outside of urbanized areas. This is entirely in line with the state’s own policy goals to promote dense infill housing and to protect open space and natural and working lands, such as the “30×30” program to preserve 30% of California’s lands and coastal waters by 2030. Unfortunately, developers are ignoring these policies as well as the plain language of the builder’s remedy statute in order to attempt to push through sprawl development projects.

California needs to build more housing, but it should be built in urban areas near jobs and transit, not on farmland or open space, and not where it would put residents in harm’s way.

What’s next?

Most of these builder’s remedy projects are in the very early stages of the process. Some have only submitted pre-applications, not full applications, and many of those applications will likely take a long time to process since developments outside of urban areas often have more complicated requirements due to a lack of infrastructure. Finally, any applications that are completed and processed will also have to satisfy the requirements of the California Environmental Quality Act (CEQA).

Green Foothills will be monitoring these projects, and we will alert you when there is an opportunity to contact decision-makers to urge them to reject these harmful development proposals. If you’re not already on our email list, you can sign up at greenfoothills.org/subscribe.