Del Mar is pushing back against a proposed housing development where the developer is trying to use state housing laws to override the city’s wishes in the first place.
The project is called Seaside Ridge, and it would be located on an ocean bluff site near Del Mar’s Dog Beach. The location was first eyed for a luxury resort a few years ago, but it was defeated by voters at the ballot box in 2020.
The Seaside Ridge project proposes 42 low-income units, 43 moderate-income units and 174 market-rate units.
Some of the subsidized units would be made available to people making as little as $30,000 a year in a coastal community with a median household income of more than $150,000.
Its developers say it will help Del Mar reach its state-mandated affordable housing goals while creating low-income housing along the coastal bluffs.
A rendering of the proposed Seaside Ridge development in Del Mar / Courtesy of Seaside Ridge
But Del Mar isn’t on board, and hasn’t been since Seaside Ridge first introduced the project to the city last October.
Last month, the city said Seaside Ridge’s application was incomplete and “not supported by law.” Del Mar officials argue the city would need to rezone the site to move forward with the project.
But Seaside Ridge isn’t the typical project looking for special approval to exceed local development restrictions.
In fact, the developers are arguing the city has no choice in the matter.
Seaside Ridge’s lawyers are pursuing an uncertain legal strategy, arguing they’re eligible for what’s called a “Builder’s Remedy,” an obscure but increasingly discussed element of state law that, for now, remains untested. They argue Del Mar must approve the project.
The Builder’s Remedy is a provision under the state’s Housing Accountability Act. It says if a city doesn’t have a compliant Housing Element, the city cannot use its zoning code or general plan to deny an affordable housing project.
A Housing Element is a state-required plan outlining how a city can accommodate enough new housing to meet its population’s needs.
Del Mar has been trying to get its latest Housing Element approved by the California Department of Housing, or HCD, since March 2021, but the state has sent it back three times saying Del Mar needed to make revisions and resubmit.
The City Council adopted its fourth version and submitted it to the state last month. Now, the state has until early June to either approve it or deny it once again.
Because Del Mar’s Housing Element hasn’t been approved by the state, Seaside Ridge says it’s not compliant with state law, and wasn’t compliant when developers submitted their preliminary application last October.
In other words, without a compliant Housing Element, Del Mar can’t use zoning as a reason to deny a project, they argue.
There are two other state housing laws they’re leaning on, too: the Housing Crisis Act and AB 1398, but they also say the Builder’s Remedy, which has generated attention throughout California, also applies.
The Housing Crisis Act, passed in 2019, says the city can only rely on rules that were in place at the time the developer’s preliminary application was submitted when they’re reviewing a development project.
The developers submitted their preliminary application on Oct. 4, 2022.
And AB 1398 requires cities that don’t have a compliant Housing Element to rezone all of the sites identified in its Housing Element that need rezoning.
In this case, the Seaside Ridge site is listed in Del Mar’s Housing Element as a backup option that would need to be rezoned if the city were to ever use it to meet its housing needs.
These two laws apply here because Del Mar is one of the few cities in San Diego County without a state-approved Housing Element, making it out of compliance with state law.
Christopher Elmendorf, professor of law at UC Davis, said the Housing Crisis Act and the Builder’s Remedy law are working in tandem in the case of Seaside Ridge.
“If a preliminary application for a project is submitted while the city is out of compliance, then the fact that the city later achieves compliance does not allow the city to retroactively apply zoning code to the project,” Elmendorf said.
But Del Mar disagrees.
The city’s Principal Planner Matt Bator sent a preliminary review letter to Seaside Ridge on April 27, which said Seaside Ridge’s application was incomplete and not supported by law.
Bator said the Seaside Ridge site is inconsistent with current zoning, meaning Del Mar would have to rezone the site to move forward with the project. But Del Mar doesn’t need to rezone anything, Bator said, because the city already identified enough sites in its housing plan to make way for the 113 low-income units the state said it is required to accommodate.
Bator also said the city’s Housing Element “is in substantial compliance,” even though it hasn’t been approved by the state housing department.
“The comments received from HCD during the Housing Element review cycle were requests for additional data or clarifying requests none of which required the city to change any programmatic features contained in the city’s Housing Element,” Bator said in the letter.
Because of this, Del Mar believes it doesn’t have to approve the project based on Builder’s Remedy, AB 1398 or the Housing Crisis Act.
Sonja Trauss, executive director of YIMBY Law, said they’ve been seeing this approach from other cities facing the prospect of Builder’s Remedy projects or related state housing laws.
“The first line of defense we’re seeing is that cities are saying, ‘we do have a compliant Housing Element,’” Trauss said. “If cities have submitted their Housing Element, and HCD doesn’t approve it, then the cities will say, ‘HCD is wrong, our Housing Element actually is in compliance, so these laws don’t apply.’”
Basically, it’s like a “he said, she said” situation, Trauss added.
There are also some uncertainties surrounding the Builder’s Remedy that cities could potentially use to their advantage, Elmendorf said.
“One thing that’s uncertain is what exactly the city can and can’t apply to a Builder’s Remedy project,” Elmendorf said. “The city can’t apply its zoning or its general plan land use restrictions, but according to law, it can apply development standards, and no one really knows what the difference is between a development standard and a zoning restriction.”
Because tests of these laws are just now coming into play, it may be left to the courts to sort through ambiguities and decide who is right and who is wrong in a situation like the one in Del Mar.
“If the city ultimately denies it, the developers would have to go to court if they want to try to move the project forward,” Elmendorf said. “They can ask the state housing department to send a letter to the city, but the department doesn’t have the authority to issue permits.”
Trauss said the Seaside Ridge proposal is already on YIMBY Law’s radar.
“If Del Mar proceeds with its apparent plan to disapprove the project they could be subject to lawsuits from the developer, from us – YIMBY Law – and also from the state of California via the Attorney General’s office,” Trauss said in an email.
Alicia Murillo, a spokesperson for the California Department of Housing, said in an email that Del Mar is not yet compliant, so the Builder’s Remedy does apply to them.
However, there may still be issues beyond zoning that come into play, she said, but the department is not currently engaged enough with this specific case to speak to those facts.
“If a jurisdiction’s adopted housing element is not found substantially compliant by HCD as of the jurisdiction’s statutory deadline, the jurisdiction would be unable to use … inconsistency with zoning and general plan standards, as a basis to lawfully deny qualifying affordable housing,” Murillo said.
Del Mar is now requiring Seaside Ridge developers to resubmit their application and other required materials and respond to each of the city’s concerns.
But the developers aren’t giving up. Darren Pudgil, a spokesperson for the project, said they plan on resubmitting their application and addressing the issues Del Mar raised.
“Unfortunately, Del Mar disagrees with our project as proposed,” Pudgil said. “Regardless, Seaside Ridge continues to be a real, ready-to-go project that would significantly help Del Mar meet its state-mandated housing obligations.”
As more developers turn to the Builder’s Remedy and other similar state laws, it will be interesting to see the broader impact of these laws play out, Trauss said.
“A lot of these projects are being proposed in exclusive high-cost places – places where desire to live and desire to build is really high, but the cities have really strict laws,” Trauss said. “Finally, there’s a little bit of a crack in the glass where we’ll be getting some projects that we otherwise never would have been able to tap into.”
These laws will also put pressure on cities to create compliant Housing Elements and to adopt them on time, she added.
Del Mar officials declined to comment.
It looks like Del Mar is buying itself the worst of all worlds. In order to preserve the ‘character of the town’, in other words keep out ‘those people’ they have denied multiple projects. They are now viewed as an obstruction, with the state, various housing organizations, and the developer lining up to force their compliance.
They are now looking at a development that would bring ‘those people’ on to an ocean view lot right next to very expensive homes, whose owners will go nuts. They will have the neighborhood owners, the developer, the housing organizations and the state all beating them up over their decisions.
It’s an irresponsible project. 5-story towers on an 18’ rise perched on a crumbling bluff. No one lives near them except condos to the north built in the 1970s, condos with seawalls and armoring starting to fail due to constant erosion on the same bluff. It’s a luxury project trying to duck the Coastal Zone and CEQA, and in this instance, we really need those protections because the bluff is failing very quickly, posing a threat to public safety to the many visitors to Del Mar Dog Beach north. Plus the city has identified other sites for their HCD, and Catharine Blakespeare supports building some of that housing on the Fairgrounds. This project has more to do with a bitter landowner and developer trying to wring profits from land that’s simply not stable enough for huge projects.
Good point Carla. I have been past the site and witnessed the erosion
of the bluff as a volunteer at Torry Pines and also was concerned about
the homes on bluffs overlooking the ocean.
It’s a good EXCELLENT idea!!!
Let’s move forward …
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