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Alameda County Planning Department June 4, 2024 Page 4 #503315009_v1 Housing Element compliance status in effect at the time of preliminary application submittal.11 In guidance materials issued to local agencies, HCD has confirmed that: “When a preliminary application “submittal occurs at a time when the jurisdiction does not have a compliant housing element, any potential benefits afforded to the applicant as a result of the jurisdiction’s noncompliant status . . . remain throughout the entitlement process even if the jurisdiction subsequently achieves compliance during the entitlement process.”12 This principle was also recently confirmed in the first builder’s remedy trial court decision in Los Angeles Superior Court, in the case of California Housing Defense Fund v. City of La Cañada Flintridge et. al.13 Here, on January 4, 2024, HCD found that the County’s December 21, 2023 draft housing element did not substantially comply with state housing element law.14 Applicant understands that the County recently submitted a revised draft of its Housing Element to HCD on May 10, 2024. As of today’s date, HCD has not certified the County’s Housing Element as being in substantial compliance with state housing element law. Per the County’s website, if HCD certifies the County’s revised draft housing element, “CDA staff and consultant team will finalize Housing Element. Planning Commission & Board of Supervisors will hold public hearings for adoption.”15 If HCD does not certify the draft Housing Element, CDA staff and consultant team will revise the second draft of the Housing Element to address HCD's comments as needed; give public notice of second comment period on Housing Element; and submit third Housing Element draft to HCD for review.16 Thus, as of today’s date, the County has not adopted a Housing Element that substantially complies with state housing element law. Accordingly, the Project is entitled to (and has vested) to processing under the HAA’s Builder’s Remedy. V.State Density Bonus Law Under State Density Bonus Law (“SDBL”),17 20% LI projects are entitled to a 35% density bonus, two (2) incentive/concession from developments standards, and unlimited waivers from development standards that physically preclude development of the project at the density sought. 11 See HCD, 3030 Nebraska Avenue, Santa Monica – Letter of Technical Assistance (Oct. 5, 2022), at 2, https://www.hcd.ca.gov/sites/default/files/docs/planning-and-community/HAU/santa-monica-TA-100522.pdf 12 3030 Nebraska Avenue – Letter of Technical Assistance, at 2. 13 Los Angeles Superior Court Case No. 23STCP02614, Order on Petitions for Writ of Mandate and Complaints for Declaratory Relief (Mar. 4, 2024). 14 https://www.acgov.org/cda/planning/housing- element/documents/AlamedaCountyInitialDraftHousingElementLetter1_4_2024.pdf 15Alameda County Housing Element Update 2023-203, (accessed on June 3, 2024), available at https://www.acgov.org/cda/planning/housing-element/housing-element.htm 16 Id. 17 § 65913.16(j)(1)(C).