The Builder's Remedy: Key Considerations for Enforcing Pro-Housing Policies

States across the nation are trying to address the shortage of affordable housing by requiring that their local governments take steps to make it easier to build more housing and a wider variety of housing types. Some states create methodologies for determining state-wide housing needs (including housing affordable to lower-income households) that are then distributed at the regional and local level. Those states assign local governments a target and require localities to plan and zone to meet the target. States also have preempted local governments’ regulation of specific kinds of development by telling localities what they must allow or by requiring localities to change their procedures to streamline the development approval process. Regardless of which measures they take, states confronted with stonewalling or defiance from their local governments need ways to enforce their mandates. States have used a variety of tools to ensure compliance, including, but not limited to, providing priority for state funds, withholding state funds from localities that don’t meet the requirements, and giving their attorneys general the power to sue localities.

Eight states—California, Connecticut, Illinois, Massachusetts, New Hampshire, New Jersey, Rhode Island, and Washington—give developers a “builder’s remedy”, which is the right to seek permission for their projects through special administrative processes or to use special processes to challenge a local government’s rejection or conditioning of their project if the jurisdiction is not achieving its housing supply targets. That enforcement mechanism is the subject of this policy brief.

In this policy brief, we first describe the variations among the states that have adopted some form of a builder’s remedy. We explore what can be learned from the different design choices the various states have made. We review empirical research to compare the costs and benefits of the builder’s remedy against other alternative strategies states have implemented to enforce supply-side reforms. We conclude with the key concerns that states considering a builder’s remedy should address.