West Hollywood Councilwoman Chelsea Byers, pictured at the April 1 City Council meeting, voted against Councilman John Heilman’s May 20 item that seeks to preclude the city from California’s builder’s remedy law. (photo by Jon Viscott)

The builder’s remedy, a 1990 California law that allows developers to circumvent zoning restrictions if projects contain affordable housing units, has been a subject of controversy since it was first passed.

“No one at the state level knows our city as well as the city’s residents and, hopefully, the people they elect. One size fits all is not the answer,” West Hollywood Councilwoman Lauren Meister said.

Now, West Hollywood, which last month received the “Prohousing Designation” from Gov. Gavin Newsom, has drawn a line in the sand with the 34-year-old legislation. At its May 20 meeting, the City Council directed staff to implement a campaign to exempt the city from builder’s remedy proposals, using the city’s “prohousing” reputation as leverage.

“West Hollywood has consistently demonstrated our commitment to addressing the housing crisis,” Councilman John Heilman said. “We’ve adopted and implemented policies that are designed to preserve and expand affordable housing. While the builder’s remedy law is an important tool which should be applied to communities who have thwarted their obligations to create more housing, West Hollywood is not one of those communities. West Hollywood shouldn’t be penalized with oversized developments when we’ve always been in substantial compliance with both the spirit and the letter of state law.”

“The direction [by City Council] was simply doing what we already were doing – reporting back to the council on these projects, working with our statewide officials in Sacramento to find a way that West Hollywood, who asked to build more affordable housing in our housing element, not less like other cities have been, can work with at the state, rather than essentially being punished by a law that I don’t really believe was intended to impact cities like ours,” Mayor John Erickson said.

The City Council motion comes as California Assembly Bill 1893 has passed in the state legislature. The bill is an overhaul of the builder’s remedy. While it does provide some perks for developers, including exemptions from public hearing and environmental review requirements, it would also contain how large the projects could be. The bill is largely aimed at cities that are not adhering to state laws, and it would have little-to-no effect on cities like West Hollywood. Still, the council directive indicates that West Hollywood would appreciate further legislative recognition and exemptions for the city’s housing efforts.

“It’s something that [the state and the cities] have to negotiate together,” Erickson said. “Can [West Hollywood] actually build the right amount of [affordable housing] and not be held to the same standards as cities that literally reject 100% affordable housing projects like Huntington Beach and La Cañada Flintridge.”

Vice Mayor Chelsea Byers was the lone no vote against the direction, saying that while the city might take issues with the law, it still has to follow it.

“The point of builder’s remedy is to hold bad actors accountable,” Byers said. “And so, I’m not clear how our affront to this process now is not participation in that bad actor approach. It’s deeply unfortunate that we are in this scenario now, but I do not think that this is the path out of it.”

Byers went on to note that the city is not currently on track to meet the state’s housing goals.

“I believe we are less than 10% of the way toward that goal, and I think that is even a generous number based on my memory, and so to celebrate ourselves as good actors in this time is really a matter of living in the past and not confronting our current reality, which is what the state is asking us to do,” she said.

Some residents said the pushback from West Hollywood was a violation of state law.

“This item is astounding coming from a pro-housing city like West Hollywood,” resident Andrew Soloman said. “You’re essentially asking [City Attorney Lauren Langer] to figure out a way to break the law, and then you’re asking [governmental affairs liaison] Hernan Molina to figure out a way to sell it. As one attorney put it to me, ‘Not even Beverly Hills has a council-established policy against builder’s remedy.’”

Other community members disagreed with the idea that builder’s remedy was truly a law at all.

“[Builder’s remedy] is not established law,” said resident Gail Sanes, who belongs to a neighborhood group, Huntley Coalition, that advocates for West Hollywood’s exemption to builder’s remedy. “It has been the subject of multiple lawsuits, and no court of appeal has made a determination as to the meaning of what ‘substantial compliance’ is, and until they do, the game is not over.”

“We should tell our lobbyists to do all that they can to help us regain control of the future of our city and protect the nature of neighborhoods,” resident George Nickle said.

Heilman said that West Hollywood’s has been pro-housing since its earliest days.

“Both the language of the builder’s remedy and the legislative intent behind it suggest that it shouldn’t be applicable to a city which has consistently been a leader in housing development,” Heilman said.