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Council Approves Agreement That Removes 'Builder's Remedy' Projects

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By Jorge Casuso

May 10, 2023 -- The City Council on Tuesday approved a settlement agreement that will avert a lengthy legal battle over an untested development policy and scale back nearly a dozen projects that could have been built largely outside the City's control.

The 7 to 0 vote came as Santa Monica's largest developer -- WS Communities -- threatened to proceed with 14 "builder's remedy" projects' totaling nearly 4,200 units if the Council didn't greenlight the proposed settlement before midnight ("WS Could Pull 13 'Builder's Remedy' Projects Under Proposed Settlement Agreement," May 5, 2023).

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Under the agreement, WS will withdraw all but one of the projects proposed under a provision in State law that allows developers to bypass a city's zoning code and general plan if a Housing Element has not been certified.

The agreement, said Councilmember Phil Brock, "eliminates the threat of builder's remedy once and for all. We are eliminating oversized development in most of our city," he said. "I believe this is the best chance to preserve a significant amount of our city."

All of the projects submitted by WS under the builder's remedy were taller than 10 stories, and three were 18 stories in height. Under the agreement, the tallest developments are capped at 84 feet under the City's Downtown plan.

WS will resubmit 10 of the projects under Santa Monica's ministerial planning process, and the City will expedite the process and provide incentives, including increasing the maximum parking requirements for the projects Downtown.

WS will withdraw three of the projects -- two 14 stories tall and one 18 stories tall --, while the 18-story builder's remedy project at 1433-47 Euclid Street would remain under the State provision.

"We are doing this to get rid of the builder's remedy projects," said Councilmember Caroline Torosis, adding that ten of the projects would be "reduced in size dramatically."

"I think this is a good deal for us," Torosis said, noting that the proposed agreement "expires tonight."

If the midnight deadline is missed, Brock said, "our coach becomes a pumpkin."

The relatively quick and unanimous vote dealt a blow to the Santa Monica Coalition for a Livable City (SMCLC), which had urged the Council on Monday to put the brakes on the proposed agreement ("Slow-Growth Group Opposes 'Builder's Remedy' Settlement Agreement," May 8, 2023).

The Council, the letter warned, could be hastily entering into an agreement without information on the heights and number of market-rate and affordable units that would be built on the sites.

In her presentation to the Council, Assistant City Attorney Susan Cola addressed each of the Coalition's concerns and cautioned that challenging the builder's remedy projects would be entering uncharted waters.

"The chances of prevailing are nebulous," Cola told the Council, noting that a legal challenge could result in a "three-year battle in the courts."

Most of the dozen and a half speakers who testified at the meeting were affiliated with Crossroads School, which sits next to a proposed 15-story builder's remedy project that will now be divided and the building heights reduced.

The 14 proposals were rushed into Santa Monica's development pipeline less than two weeks before its new 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 rush set a Statewide precedent that alarmed slow-growth advocates and heartened housing activists eager to see Santa Monica meet its State-mandated quota that requires the City to plan for 8,895 new housing units, 6,168 of them affordable, over the next eight years.

Attorney Dave Rand, who represents WS, has said it will not be clear how many units the new proposals will produce until designs are submitted for the projects, which will be built faster and with more certainty.

"All this does is bring the projects out of no man's land into the regulations you have adopted," he told the Council before the vote.

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