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 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 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 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 California Tax Credit Allocation Committee (TCAC) scores and financing to conveyance/take down terms and selection of regulatory pathway for entitlement and environmental compliance.