YIMBYs sue Bay Area cities to recognize builder’s remedy

Three YIMBY groups have filed a total of 12 lawsuits against some of the most expensive cities in the Bay Area in what they call a “first round” of legal actions against municipalities that missed the Jan. 31 certification deadline on their state-required housing element. 

Most Bay Area cities missed the Jan. 31 deadline to have their eight-year housing plan certified by the state’s Department of Housing and Community Development. Yet the litigating organizations — Californians for Homeownership, California Housing Defense Fund and YIMBY Law — said in a statement that they prioritized cities with “the most egregious violations” for this legal first push. 

Some of the cities and counties sued by one or two of the nonprofits are also among the most expensive places in the Bay Area and include the North Bay municipalities of Belvedere, Fairfax, Martinez and Novato. In the South, the cities include Burlingame, Cupertino, Daly City, Palo Alto and Santa Clara County; and to the East, Pinole, Pleasant Hill and Richmond. 

“The initial lawsuits focus on cities with a long history of exclusionary housing practices, cities that adopted housing elements unlawfully and localities that have made little progress in developing their draft housing elements,” the statement reads.

The lawsuits set out to prove that each of the cities and counties are subject to builder’s remedy, which means that proposed housing projects with at least 20 percent “affordable” units can move forward without significant local government oversight. The suits also seek to recoup legal fees and other costs.

According to Jessamyn Garner, marketing and communications director at national network YIMBY Action, the organizations tried to avoid litigation by going to the cities in question and asking them to acknowledge in writing that they were out of compliance with state housing law and that therefore builder’s remedy was now applicable in their municipalities. After they either refused or didn’t respond, the groups moved forward, filing 12 suits by Feb. 3.

“The goal is ultimately to get these cities to submit a compliant housing element,” Garner said via email.

These suits join the nine others that these groups have already filed in Southern California against cities which had to be in compliance over a year before the Bay Area and already have several builder’s remedy suits making their way through the courts.

“The Bay Area’s cities and counties had over 15 months longer to develop housing elements, and many started their process over a year ago,” Matthew Gelfand,

counsel at Californians for Homeownership, a California Association of Realtors-affiliated nonprofit, said in the statement. “They let the process get bogged down as the deadline approached, often as the result of opposition by anti-housing activists. These lawsuits will help ensure that these cities and counties face appropriate consequences.”