Two years ago, the Builder's Remedy started to rear its head in Southern California, creating an avenue for developers to builder taller and denser in housing-averse jurisdictions. While Santa Monica opted to settle with the applicants pushing the roughly one dozen Builder's Remedy projects that emerged while the city's housing element remained out of compliance, other jurisdictions such as Redondo Beach have opted to fight. The City of Beverly Hills can be safely grouped into the second category.

At its June 27 meeting, the Beverly Hills City Council voted 5-0 to deny an appeal from developer Leo Pustilnikov challenging an October 2013 incomplete application determination made in response to his proposed project at 125-129 S. Linden Drive. The proposed development would consist of a 19-story, approximately 200-foot-tall building featuring 165 apartments  - 20 percent of which would be rented to lower income households - and a 73-room hotel.

125-129 S Linden DriveGoogle Street View

The project's use of the Builder's Remedy is intended to allow greater height and density than typically allowed for new developments in Beverly Hills. At the time the application for the site was first submitted to the city 2023, Beverly Hills had failed to secure state certification for its housing element, making it vulnerable to such applications. While the city maintained that its housing element was in "substantial compliance," over the course of multiple rejections by state regulators, it was dealt a legal defeat where a Los Angeles Superior Court Judge determined otherwise in late 2023. The city did eventually obtain certification for its housing element earlier this year.

Rather than focus on the of the project itself, the debate over Putsilnikov's project was largely focused on procedure. The city, in determining that the project application was incomplete, argued that the project had lost its vesting rights under SB 330 due to the addition of a hotel between the submission of its preliminary application and its development plan review application. The city argued that the revised proposal constitutes a distinct project from the original, while the development team contends that the new plan has not changed sufficiently to lose vesting rights.

Likewise, the city has repeatedly instructed the applicant team to submit applications for a general plan amendment and a zone change for the project - discretionary entitlements which the city would have the authority to approve or deny. However, Putsilnikov has declined to request those entitlements, as the Builder's Remedy is intended to override local zoning rules. Since the city had failed to obtain certification for its housing element at the time of the application, the development team contends that the city lacks the discretion to require a general plan amendment and a zone change.

129 Linden DriveGoogle Maps

Complicating matters is an April 2024 letter sent by the California Department of Housing and Community Development (HCD) to the City of Compton, which had which stated that "the Builder's Remedy does not expressly prevent the City from requiring discretionary permits and/or legislative actions," such as general plan amendments and zone changes. Beverly Hills staff cited the Compton letter repeatedly as affirmation of its position on the Linden Drive project.

However, at the 11th hour, HCD appears to have reversed its stance on the issue, sending a letter directly to Beverly Hills dismissing the rationale used in its Compton letter as "absurd," and recommending that the city should grant Pustilnikov's appeal and process the Linden Drive tower.

The outcome of the ongoing fight over Linden Drive could have major implications for the city moving forward. There are more than a half-dozen other proposals which made use of the Builder's Remedy prior to the certification of the city's housing element, including multiple other proposed high-rise buildings.

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