YIMBYS prevail in Cupertino as ‘Builder’s Remedy’ agreement settled


The City of Cupertino is one step closer to seeing more housing delivered due to a legal case concluded this week that enforces the “Builder’s Remedy” provision of California law designed to ensure cities adequately plan for and ultimately deliver needed housing.

YIMBY Law and the California Housing Defense Fund have won a stipulated judgment against the City of Cupertino for the city’s late housing element, one of a series of lawsuits against cities filed last February.  Cities had a deadline of January 31 of last year to complete their plans for their share of housing through 2031. In Cupertino, that number is 4,588 new homes, including 1,880 that would be affordable for low-income households. Cities without an approved Housing Element are subject to a fast-tracked project approval process, limiting local oversight; nearly half of Bay Area cities, including Cupertino, still fall into this category. The California Department of Housing and Community Development (HCD) rejected the City’s latest plan on December 15 of last year.

With the settlement, Cupertino has agreed to honor the “Builder’s Remedy” for affordable housing projects that filed applications with the City after it failed to meet last January’s deadline. The judgment also commits Cupertino to revise its housing plan in accordance with the state’s Housing Element Law.

The settlement represents a marked change for the City that has for years attempted to circumvent its obligation to deliver housing, despite multiple letters of warning from HCD. And housing advocates recognize the uphill climb, given Cupertino’s history of project-specific obstructionism and lengthy but failed lawsuits brought by NIMBY group Better Cupertino which until recently held a controlling  majority of Council seats.

“The builder’s remedy should help create some affordable housing in the short term while the City works to come up with a viable long-term plan,” said Dylan Casey, Executive Director of the California Housing Defense Fund.

To track the City’s progress with its housing element, please visit https://engagecupertino.org/hub-page/housingelement.