The builder’s remedy is a California provision that lets a developer build a qualifying residential project without complying with local zoning, density caps, or general plan designations when the city or county has not adopted a housing element certified by the state. It comes from the Housing Accountability Act and was substantially rewritten by AB 1893, which took effect January 1, 2025. When a jurisdiction is out of compliance, it loses its main legal basis for saying no, and a project that meets the statute’s affordability and density rules can move forward on land the city never zoned for housing.
When the Remedy Is Available
Every California city and county must maintain a housing element as part of its general plan, showing how it will accommodate its share of regional housing need across income levels. The state Department of Housing and Community Development reviews each housing element and either certifies it as substantially compliant or rejects it. Updates run on fixed multi-year cycles, and missing a deadline pushes the jurisdiction into noncompliance immediately.
A jurisdiction also falls out of compliance if a previously certified element expires without a timely replacement, or if HCD revokes certification because the city failed to implement its commitments. The window stays open until HCD formally certifies a new or revised element. During that window, the builder’s remedy is available to any developer who files a qualifying project.
Compliance status is public. HCD maintains a housing element database, and checking it is the first step before spending money on design, engineering, or application fees. A project filed one day after certification loses builder’s remedy protection entirely.
What a Project Has to Include
AB 1893 reset the affordability math. A project now qualifies for the builder’s remedy if it meets one of these thresholds:
- 7% of units reserved for extremely low income households (roughly 30% or less of area median income)
- 10% of units for very low income households (about 50% of AMI)
- 13% of units for lower income households (roughly 80% of AMI)
- 100% of units affordable to moderate income households (up to 120% of AMI)
California defines moderate income as earnings between 80% and 120% of area median income, adjusted for household size.1California Legislative Information. California Health and Safety Code 50093 Affordable rental units carry a 55-year recorded deed restriction; owner-occupied affordable units carry a 45-year restriction. A small-project path also exists: a development of 10 or fewer units on a site under one acre qualifies if it’s built at a minimum of 10 units per acre, with no required set-aside.2LegiScan. California AB 1893 Bill Text
Missing any of these criteria disqualifies the project, so unit counts and income targeting have to be locked down before filing.
AB 1893 also replaced the older framework, which some courts had read as allowing unlimited density, with state-imposed density standards. Outside rural areas, every builder’s remedy project must be built at a minimum of townhome density, and the city cannot cap density below that floor. Near major transit stops, in high-resource areas with low vehicle miles traveled, and in transit-rich areas defined by state law, projects can add up to 35 units per acre above what would otherwise apply. These allowances can stack with California’s density bonus law, which grants further increases in exchange for more affordable units.2LegiScan. California AB 1893 Bill Text
Cities cannot require a rezoning, a general plan amendment, or any fee beyond what a zoning-compliant project would pay. Applications must be processed under the same procedures used for conforming projects.
How to File and Lock In Rights
The process starts with a preliminary application under SB 330, codified at Government Code Section 65941.1. A developer is deemed to have submitted the preliminary application once they provide the required project information and pay the permit processing fee.3California Legislative Information. California Government Code 65941.1 That information includes parcel data and existing uses, a site plan with building locations and elevations, massing, height, and square footage, a breakdown of residential and nonresidential uses by unit and square feet, parking counts, affordable unit detail by income level, and environmental factors such as fire hazard zones, wetlands, hazardous waste sites, flood zones, and earthquake fault zones.
Filing the preliminary application triggers vesting, which locks in the local ordinances and development standards in effect on that date.3California Legislative Information. California Government Code 65941.1 This is the single most important procedural step. Vesting prevents the city from adopting new rules to block the project after the filing. The developer then has 180 days to submit a complete development application, or the vested rights expire.
What the City Can and Can’t Do
Under the Housing Accountability Act, a local government may deny or condition an affordable housing project only on specific findings. The most common one, which a noncompliant jurisdiction cannot make, is that the city has a compliant housing element and has met its share of regional housing need for the income category the project serves. Without that finding, the main basis for denial disappears.
The remaining grounds are narrow. A city can still reject a project that creates a specific, measurable threat to public health or safety that cannot be mitigated without making the project financially unworkable. It can deny a project if denial is required to comply with a separate state or federal law. It can turn down a project proposed on land zoned for agriculture or resource preservation that’s surrounded by agricultural use, or that lacks adequate water or wastewater service. AB 1893 confirmed that noncompliant jurisdictions can deny projects that don’t meet the builder’s remedy criteria, while reinforcing that they cannot reject projects that do.
Review is limited to objective health and safety standards, not subjective judgments about design or neighborhood character. A city cannot use design review as a back door to deny a qualifying project.4California Legislative Information. California Government Code 65589.5 SB 330 caps public hearings at five for qualifying housing projects, which prevents jurisdictions from stacking community sessions to run out the clock.
Wrongful denial carries real cost. A court can impose a minimum fine of $10,000 per housing unit in the denied project.4California Legislative Information. California Government Code 65589.5 On a 200-unit project, that’s at least $2 million. If the court finds bad faith and the city then fails to comply with a court order, the fine is multiplied by five. Repeat violators within the same planning period face an additional multiplier on top of that. If a city appeals a ruling that it violated the HAA, it must post an appeal bond guaranteeing the project remains financially viable through the appeal.
The California Attorney General has issued a formal legal alert warning local governments that refusing to process a timely builder’s remedy application violates the Housing Accountability Act, and the office has signaled it will intervene.5California Attorney General. Attorney General Bonta Issues Builder’s Remedy Legal Alert
If the City Gets Certified During Review
A common worry: what happens if the jurisdiction gets its housing element certified while the project is still in review? Because the preliminary application locks in the legal framework that existed on the filing date, later certification does not strip the project of its builder’s remedy status. The city cannot retroactively apply its newly compliant housing element to a project already vested under noncompliant conditions.
Timing is everything. A developer who files one day too late loses the window, and a developer who files on time is protected through a multi-year entitlement process. Projects filed before January 1, 2025, can proceed under the pre-AB 1893 rules, and developers with pending applications can selectively adopt AB 1893’s provisions without losing vested status.
A Note on Other States
The term “builder’s remedy” also refers to a separate New Jersey doctrine. There, the remedy is not statutory and automatic; it requires a developer to sue and prove the municipality has failed its affordable housing obligations under the state Supreme Court’s Mount Laurel decisions, that the project includes a substantial share of affordable units, and that the site is suitable. If the court agrees, it can order the municipality to rezone the property.6New Jersey Courts. New Jersey Fair Housing Act The litigation-driven path is slower and more expensive than California’s administrative one.
Massachusetts Chapter 40B lets developers seek a comprehensive permit that overrides local zoning in municipalities where less than 10% of the housing stock qualifies as affordable, provided the project reserves 20 to 25% of units with long-term affordability restrictions.7Mass.gov. Chapter 40B Planning and Information Florida’s Live Local Act requires administrative approval of qualifying multifamily and mixed-use projects on commercially or industrially zoned land when at least 40% of rental units are affordable to households at or below 120% of area median income for 30 years, and it blocks cities from imposing rezoning requirements or density and height caps below specified thresholds. None of these use the California affordability tiers or vesting mechanics, so a developer working outside California should treat them as separate programs with their own rules.