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San Jose expects to face consequences for missing crucial state housing deadline

By Sarah Klearman, Silicon Valley Business Journal, October 18, 2022

“The city is on track to adopt its housing element more than four months late, Michael Brilliot, San Jose’s deputy planning director, said in an interview Monday. […] San Jose expects to bring its housing element before its City Council some time in June, Brilliot said.

“Unlike San Francisco, which didn’t discover until mid-October it was on track to miss the January deadline, San Jose has known for at least a few months it was running behind, Brilliot said.

“San Jose’s timeline means it will be out of compliance with state housing law for a few months next year, during which time it will be subject to a handful of consequences[.] [Notably,] loss of local zoning control, a punitive measure that has come to be known as the builder’s remedy.

“Asked about the builder’s remedy, Brilliot described the city’s existing zoning as already forward thinking. Most residential developers would likely be deterred from pursuing builder’s remedy projects in San Jose either because of the 20 percent affordable requirement or the complexity of the provision, he said.

“Developers have historically shied away from taking advantage of the builder’s remedy because of its complexity and because the state government has traditionally not tightly enforced housing laws that applied to local jurisdictions. But developers have begun to rethink those calculations, legal observers told the Business Times this week.”

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