U.S.: Aligning Affordable Housing and Brownfields Projects for Success

Written by Nicholas Targ, Partner and Co-chair of Holland & Knight’s National Environmental Team and Chelsea Maclean, Partner, Holland & Knight

Affordable housing and infill developers can benefit from recently enacted housing laws and Brownfields law and policies. These new laws along with national-caliber land use and environmental help can deliver affordable housing and infill projects faster and can substantially simplify the California Environmental Quality Act (CEQA) and development process.

New Housing Laws Benefit Affordable Housing and Other Infill Developers

The following three examples demonstrate the power of the new housing laws:

  • SB 375 Sustainable Communities Environmental Assessment (SCEA): A litigation-tested CEQA streamlining tool, SCEA helped an affordable housing developer client meet tight funding deadlines for a large affordable housing project and reduce litigation risk. The SCEA document is similar in scope to a typical Initial Study/Mitigated Negative Declaration, but includes the more protective “substantial evidence standard” of review of an Environmental Impact Report.
  • SB 35 Ministerial Processing Combined with AB 1764 Unlimited Density Bonus: The powerful SB 35 statute, which provides for ministerial/CEQA exempt approval, was layered with AB 1763, which provides for unlimited density under the State Density Bonus Law, for a client’s 125-unit infill project. After reviewing the use of the new housing laws with the city attorney’s office and Planning Department, the affordable housing provider gained approval for its housing project.
  • AB 1804 County Infill Exemption: This 2018 CEQA exemption for infill projects in unincorporated counties provided an affordable housing provider client with an accelerated entitlement pathway for its mixed-use affordable housing/community serving medical clinic project.

Attention to Brownfields Issues, and Alignment of Environmental and Housing/CEQA Laws is the Winning Combination

The new housing and CEQA streamlining laws frequently include special requirements for a project to be built on environmentally impacted land (e.g., SB 35, CEQA Class 32 Categorical Exemption for Urban Infill Housing). Moreover, given the recent ratcheting-down of vapor intrusion environmental screening levels, careful attention to Brownfields issues can mean the difference between success, delay and/or cost overruns.

The use of key Brownfields tools such as insurance, streamlined regulatory processes and avoidance of legal and environmental “land mines” (e.g., Cortese List, late discovered contamination) can make all of the difference. Successful infill projects – especially affordable housing projects, which carry higher regulatory and public scrutiny – are those that evaluate Brownfields issues early in the decision-making process.

Recent successful use of Brownfields tools to advance affordable and infill housing and associated projects include:

  • Preliminary Endangerment Assessment (PEA) Decision Document: The PEA assessment process allowed the state environmental agency to conclude at an early stage in the development process that no further action was required at a client’s affordable housing site, and to establish a workable and environmentally protective set of construction requirements.
  • California Land Reuse and Revitalization Act (CLRRA): Reauthorized in 2016, CLRRA was used to streamline the regulatory cleanup path for a client’s project and to provide qualified environmental immunities. Integrating the cleanup plan into the CEQA document, as a mitigation measure, litigation risk was reduced and regulatory certainty increased.
  • Comfort Letter: A state environmental agency’s “comfort letter” established that a release of the emerging chemical of concern – per- and polyfluoroalkyl substances or PFAS – was not sourced from a client’s affordable housing site based on environmental assessment. The letter further stated that the health of residents and construction crews would be protected, provided appropriate steps were followed. The comfort letter was critical to securing a broadly protective environmental insurance policy and allowing the affordable housing developer’s project to move forward.

Conclusion

It is recommended that housing developers consider careful alignment of the new housing laws, CEQA/National Environmental Policy Act (NEPA) compliance processes and Brownfields issues. Misalignment, especially for affordable housing projects, can result in avoidable problems ranging from those related to financing and making key milestones to conveyance/take down terms and selection of regulatory pathway for entitlement and environmental compliance.

Working with both nonprofit affordable housing providers and market developers, who produce workforce housing and infill projects, Holland & Knight’s West Coast Land Use and Environmental Group has helped guide the regulatory pathway for numerous affordable and mixed-income projects over the years across California. Holland & Knight has built a housing litigation practice with a strong record of success, and has particular strength in assisting municipalities in the appropriate use of these new housing laws to accelerate project implementation. Combining deep land use and environmental knowledge, and a highly developed housing/CEQA litigation practice, Holland & Knight lawyers have decades of experience helping nonprofit and other affordable housing and infill developers achieve success from initial diligence to opening day.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


For additional information or assistance, contact the authors or a member of Holland & Knight’s West Coast Land Use and Environmental Group.

About the West Coast Land Use and Environmental Group: Holland & Knight’s Chambers-ranked West Coast Land Use and Environmental Group includes more than 25 attorneys and professionals in San Francisco, Los Angeles and Washington, D.C., who are dedicated to producing results for their clients. Our environmental, land use, real estate, finance and litigation attorneys and policy professionals work as one team, ensuring that the person with the right experience is addressing the issue. Our attorneys are consistently nationally ranked in publications such as U.S. News – Best Lawyers “Best Law Firms” guide and Chambers. In addition to deep private sector experience, many of our attorneys have agency and legislative backgrounds, including working at the White House, U.S. Department of Justice, U.S. Environmental Protection Agency, U.S. Department of the Interior, Congress, and state and local government.