The draft ordinance aims to encourage developers to reduce the size of proposed builder’s remedy projects, such as the planned development at 125-129 S. Linden Drive. (rendering courtesy of Ottinger Architects)

The Beverly Hills Planning Commission on May 5 approved a draft ordinance that streamlines the approval process for certain builder’s remedy projects submitted in the city. The ordinance is aimed at encouraging developers to reduce the size and scale of such projects in exchange for an expedited permitting process.

The draft ordinance will now be reviewed by the City Council, which will vote on its formal adoption.

The builder’s remedy is a state provision that allows private developers to bypass local code regulations when a project contains at least 20% affordable housing. The provision takes effect when a municipality’s housing element – a state-mandated outline of zoning for affordable housing within the city – is out of compliance.

The goal of the builder’s remedy is to incentivize the creation of affordable housing to address California’s ongoing housing crisis. The builder’s remedy falls under the state’s Housing Accountability Act, which was passed in 1982 and significantly expanded in 2017.

The city of Beverly Hills’ housing element for the 2021-29 cycle was out of compliance for approximately three years between 2021-24.

“The city is currently processing 14 builder’s remedy projects, all of which have characteristics that generally far exceed the existing development standards and the type of development typically seen throughout the city,” said Cindy Goden, principal planner for the city of Beverly Hills. “Because of this, the city is exploring options to encourage developers to voluntarily reduce the scale of their buildings and their projects in order to be more in line with existing development patterns.”

The draft ordinance shifts the permitting process for builder’s remedy projects that adhere to the guidelines from a discretionary process to a ministerial process. A ministerial process does not require city officials – including commissioners and City Council members – to review the project, while a discretionary process includes public hearings and actions taken by city officials.

For example, building permits for houses that comply with all standard zoning and building code requirements are ministerial, while development plan reviews and conditional use permits are discretionary.

Builder’s remedy projects that adhere to the ministerial permitting guidelines will be exempt from the California Environmental Quality Act, and will not require public hearings or public notice. There is no right of appeal for projects approved through ministerial permitting.

To qualify for the ministerial permitting under the new ordinance, developers must adjust the builder’s remedy projects to be 85 feet tall or less. The buildings also must adhere to the uses submitted in the projects’ preliminary application, and the maximum density must be the number of units originally listed in the preliminary application.

In addition to other specifications including setbacks and parking adhering to the preliminary application, no barbeque or kitchen facilities may be installed or utilized on balconies of the projects. Outdoor common space is limited to the operating hours of 7 a.m.-10 p.m. on weekdays, 9 a.m.-10 p.m. on weekends and amplified sound must be prohibited in all outdoor areas.

“We are here because there is a collective hope that this ministerial process would provide an incentive for some of these developers who have builder’s remedy applications currently in front of the city to reduce the scale of their project in exchange for a more streamlined approval process,” Commission Chair Terri Kaplan said. “Some of them will likely say, ‘no I don’t want to reduce the scale of my project under any circumstances’ …. Even in the discretionary process we do not have a lot of wiggle room. If we do nothing, and leave it as it is, these projects – many of them, some of them – will be massive. And we have no effective way to stop that. This holds promise to mitigate some of the overall impacts.”

The draft ordinance was approved in a 3-0 vote.

Commissioner Myra Demeter and Vice Chair Jeff Wolfe recused themselves from the meeting, disclosing that they had “financial interests” in properties less than 500 feet from properties that may be affected by the draft ordinance.

Kaplan said that she and Commissioner Lou Milkowski also had similar financial interests. However, Kaplan and Milkowski attended the meeting after drawing straws with Demeter and Wolfe to determine attendance.

The city is currently engaged in at least one lawsuit over the denial of a 19-story builder’s remedy project at 125-129 S. Linden Drive. The lawsuit, filed by the developers, seeks a court order mandating that the city approve the development. The next hearing is scheduled for May 15.