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Legal Battle in the Future for Santa Monica Following ‘Builder’s Remedy’ Debacle?

City Councilors Phil Brock, Christine Parra and Oscar de la Torre presented an agenda item to address “residents’ concerns”

By Dolores Quintana

The issue of the 16 ‘Builder’s Remedy’ applications submitted during the period when Santa Monica’s housing element was rejected by the State of California could turn into a legal battle as reported by The Real

Doug Sloan, the Santa Monica City Attorney, said, as quoted by The Real “We did engage outside counsel. It’s important to realize that, when looking at this builder’s remedy issue and the Housing Element Act, the rules weren’t always very clear, and it was somewhat of a moving target from the state.” during a meeting of the Santa Monica City Council.

Sloan explained, as quoted by The Real “I don’t think the board or staff could have done anything else in the last 18 months to prevent us from being where we are.” in response to a new motion regarding the Builder’s Remedy applications.

City Council members Phil Brock, Christine Parra and Oscar de la Torre presented an agenda item to address “resident concerns” about the permits and urged the council to “appoint appropriate outside legal counsel.”

Neither Sloan nor Brock responded to requests for comment on the matter, but during the City Council meeting, Brock said that one Builder’s Remedy application that was automatically approved for a 15-story building was “beyond the pale” and “an unacceptable bar for the rest was” of the city.”

Sloan appeared to drop hints about what the City Council might adopt as a legal strategy in trying to kill the Builder’s Remedy applications. The 16 approved applications were submitted between February and October 14, 2022 while Santa Monica’s housing element did not meet state mandates. Sloan plans to argue that the date of compliance should be earlier, beginning in early September of 2022 when the City Council sent a letter to the state agency informing them that the new version of Santa Monica’s housing element is “substantially in compliance.” and if the The city council approved it.

The new version of the Housing Element was adopted by the Santa Monica City Council on October 11 and the approved plan was certified by the state agency days later.

Sloan said, as quoted by The Real, “We would make a good argument that … that really was the cutoff. And so, some of these builder’s remedy applications that we received after that, we had to maybe not to be handled like that.”

While it is not known whether this legal strategy will actually work, the legality of applications approved through the Builder’s Remedy process has not been settled in the courts. According to state law, certification occurs when the final version of the Housing Element is submitted and Santa Monica’s Housing Element was still in draft form in early September and was revised in the period between the letter and the final adoption of the Element by the Santa Monica City Council.

WSC Communities attorney Dave Rand said in an interview, “My hope is that the city is going to be selective — like they’re going to find certain projects unattractive and certain projects OK,” Rand said. “But you have councilors who are about slow growth. And they’re putting a lot of pressure on their staff to push back on these projects, so it’s not going to be a cake walk at all. It’s going to be a fight.” WSC Communities is the company that submitted the most building materials applications in Santa Monica during the non-compliance period.

This potential legal battle makes the issue of Builder’s Remedy applications much more public than it has ever been and could potentially lead to developers taking advantage of the loophole in other cities that have not had their housing elements approved by the state agency. More than 100 cities in Southern California have condos, including the cities of Beverly Hills and West Hollywood.

Not everyone in Santa Monica is against these Builder’s Remedy projects, as quoted by The Real, a resident who was in favor of these projects wrote as a comment on the agenda item: “I am writing to urge you to Embracing Builder’s Remedy projects.. Santa Monica needs more homes and affordable homes, not wasteful litigation!”

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