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In California, builder’s remedy has become a handy tool for housing developers to skirt local zoning rules. Now, Gov. Tina Kotek is weighing whether to bring the policy to Oregon.

Such a rule would add to other housing policy tools the governor has enacted in Oregon, such as establishing a statewide housing production goal and requiring each city to produce a housing needs analysis.

In California, builder’s remedy allows housing developers to bypass local zoning if a city is out of compliance with its housing element 鈥� a formal, adopted plan for where in a city housing may be built. Under Gov. Gavin Newsom and Attorney General Rob Bonta, the state has aggressively pursued enforcement of the rule for cities without certified housing elements.

Builder’s remedy was added to California’s law books in 1990 but was little used until the 2020s. In recent years, California developers 鈥� backed by state leaders 鈥� have used builder’s remedy to advance projects in cities that have rejected land use approvals for housing projects or dragged their feet in the process.

鈥淚’d say it’s the number one tool that’s led to the creation of housing in California in the last 10 years,鈥� said Ezra Hammer, a Jordan Ramis attorney and shareholder who has practiced in California and Oregon.

Past Oregon governors have looked to California and Washington for housing policy, and Kotek is following suit. Builder’s remedy was recommended by the Multifamily Housing Development Workgroup, which was convened this spring by Kotek and Portland Mayor Keith Wilson.

Upon the recommendations’ release in May, Kotek 鈥渃ommitted to exploring鈥� how builder’s remedy 鈥渃ould work to bolster housing production in Oregon.鈥�

The work group’s builder’s remedy recommendation came alongside other well-worn housing policies such as cutting permitting wait times and encouraging office-to-housing conversions.

鈥淎nything that’s helping clear the decks and make way for approval of additional housing, especially in communities where local officials are not keeping up with housing production, is a good thing in our state,鈥� said Sarah Zahn, managing director of Security Properties. Zahn was a member of the housing policy work group.

Developers have pushed for builder’s remedy projects in cities such as Beverly Hills, Redondo Beach and Santa Monica. The Golden State’s largest cities 鈥� Los Angeles, San Diego, San Jose and San Francisco 鈥� have compliant housing elements.

鈥淭here’s an inherent friction between states that have a housing crisis and want to see housing built immediately, and cities that want to maintain local control over zoning decisions,鈥� said Spencer Kallick, a land use attorney with Allen Matkins in Century City, California, who has worked with builder’s remedy developers.

鈥淪ome cities get it and understand that they need to relax certain zoning standards to provide much-needed housing close to jobs and transit,鈥� Kallick added. 鈥淥ther cities should get it, but for community and political needs they are more reticent to give up local control.鈥�

Kallick said California cities that do not have compliant housing elements fall into three categories: cities with small staffs and meager financial resources to update their housing element, cities that don’t mind builder’s remedy taking effect to encourage housing and, finally, cities that have battled the state over their housing elements.

At least 20 percent of units in builder’s remedy developments must be affordable. Developers have used it to propose projects such as One Redondo, which would bring more than 2,000 housing units and mixed-use development to Redondo Beach. The city has resisted construction of housing on the site of a defunct power plant, and the developer has launched a series of lawsuits.

Kallick warned that builder’s remedy is not a panacea, and it still requires great patience to get projects built.

鈥淭he developers who are doing builder’s remedy projects are ones that deeply understand the intricacies of the law and have the commitment to see projects through because they see the need for new housing in the state,鈥� Kallick said.

Housing experts said it remains to be seen how builder’s remedy would work in Oregon. In California, not-in-my-backyard (NIMBY) politics remain hugely influential, and opposition to development is sometimes boosted by concentrated wealth among residents.

Builder’s remedy probably doesn’t make sense outside of the Willamette Valley population centers, Hammer said.

鈥淏uilder’s remedy is going to be a tool in a few places,鈥� he said. 鈥淚t’s really built around multifamily housing. That’s going to work in Portland, maybe some of the larger suburbs around Portland, and it’ll work in Eugene. And that’s it.鈥�

Oregon developers will have to wait at least until 2026 for the state to adopt builder’s remedy. Legislators did not consider it during this year’s session.

Developers have expressed interest in building townhomes or garden-style apartments that currently run afoul of Portland’s minimums for floor area ratio, Hammer said. Those regulations dictate building size relative to lot size.

City regulators, Hammer said, have 鈥渢aken this tool that’s built for extremely hot markets and overlaid it on portions of the city where we would be blessed to have housing development.鈥�

Builder’s remedy could sweep aside that type of zoning restriction, Hammer said.

鈥淧ortland would be ripe for it,鈥� he said.