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WS Could Pull 13 'Builder's Remedy' Projects Under Proposed Settlement Agreement

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By Jorge Casuso

May 5, 2023 -- A major developer could pull 13 "builder's remedy" projects and resubmit them under Santa Monica's ministerial planning process as part of a settlement agreement the City Council will consider Tuesday.

Under the builder's remedy (BR) provision in State housing law, the projects proposed by WS -- which total 4,176 units, 836 of them affordable -- would bypass the City's zoning code and general plan.

NMS Lincoln Apartments

The proposed settlement agreement gives WS "the option to suspend the BR Project applications, and, instead, file thirteen new multi-family housing projects that would qualify for ministerial approvals" under the City's Housing Element, according to City Attorney Doug Sloan.

If WS agrees, "the City would process the new applications on an expedited basis," and "the housing built by the owners will satisfy a significant portion of the City’s regional housing needs," Sloan wrote in his report to the Council.

It is unclear how many units would be produced under the resubmitted project designs, said attorney Dave Rand, who represents WS, but under the proposed agreement, the projects would be built faster and with more certainty.

"The builder's remedy," Rand added, "was big and bold, but with the Housing Element updates in place, the settlement agreement is the best pathway to get the housing built expeditiously."

The proposed projects, Rand and Sloan both note, would help Santa Monica meet its State mandate to plan for 8,895 new housing units, 6,168 of them affordable, over the next eight years.

To pave the way for the ministerial process, the City Council has the option to adopt an ordinance that would give WS local incentives.

These include allowing the developer to pool the 15 percent inclusionary affordable units required for market-rate projects into a single 100 percent affordable housing project off-site.

The ordinance also would grant the developer State density bonus waivers and concessions for the market rate projects "as if the off-site units were provided on-site."

In addition, it would "increase in the Downtown Community Plan maximum parking requirement from 0.5 to 1.0 spaces," according to Sloan's report.

The proposed agreement settles all pending litigation filed by both parties, Sloan said.

This includes a lawsuit filed by WS challenging the City's ordinance requiring residential leases to be at least one year ("Apartment Owners Sue City Over Leasing Requirements," December 16, 2020).

The agreement also would "authorize the transfer of 20 deed-restricted affordable units from 1560 Lincoln Blvd to 1038-42 10th Street" and provide financial benefits and the right to return for three tenants recently displaced from the WS building at 1242 10th Street.

One of the builder's remedy projects applications -- for 1433-47 Euclid Street -- would not be covered under the agreement.

The 14 BR proposals were rushed into the City's development pipeline less than two weeks before the City's Housing Element was certified by the State, catching City officials off guard ("City Officials Caught Off Guard by Flurry of Development Submissions," October 13, 2022.).

The zoning upgrades the City included in the Housing Element paved the way for submitting the projects under the City's ministerial process, said Rand, adding that the settlement agreement is a win-win for both parties.

"Now it's time to lay down the swords and figure out how best to build the housing," Rand said. "We go from the Wild West into not only a safe harbor, but an expedited safe harbor."

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