DEC overstepped its authority by judging application against eligibility regulations not found in Brownfield statute. HLP Properties LLC owned a 1.75 acre surface parking lot bounded by West 17th and 18th Streets between 10th and 11th Avenues in Manhattan. The lot was part of the former West 18th Street manufactured gas plant, a 19th century facility that converted coal to combustible gas for all of Manhattan north of Canal Street. The plant operated for more than sixty years, depositing substantial amounts of hazardous contaminants into the surrounding property.

As part of HLP’s plan to develop the parking lot into two mixed-use high-rise towers, HLP submitted an application to the NYS Department of Environmental Conservation for entry into the Brownfield Cleanup Program. The Brownfield Cleanup Program Act of 2003 was enacted to encourage voluntary cleanup of hazardous waste sites and return them to constructive use. If accepted, HLP would be eligible for tax credits and liability limitations upon completing the required remediation.

DEC denied HLP’s brownfield application partly because it did not believe the property could be considered economically unattractive for development, given its close proximity to the High Line and its inclusion in a recent rezoning. 2 CityLand 83 (July 15, 2005). DEC also denied the application because it found that development of the site would not be complicated by the contamination since Con Edison, a former owner of the site, agreed to perform the necessary remediation.

Judge Walter B. Tolub reversed DEC’s denial of HLP’s brownfield application and required DEC to accept HLP’s property into the Brownfield Cleanup Program. Tolub ruled that DEC’s self-created economic eligibility criteria was not supported by the clear language of the statute, was contrary to the legislature’s intent to promote remediation and redevelopment, and amounted to an unacceptable exercise in lawmaking. The court found that the plain meaning of brownfield, as contained in the statute, included any piece of real estate, the redevelopment of which may be complicated by contamination. Since the court found that HLP’s property satisfied the statutory definition, it compelled DEC to accept HLP’s application.

HLP Properties LLC v. New York State Dept. of Environmental Conservation, 2008 NY Slip Op. 28337, (Sept. 12, 2008) (Tolub, J.) (Attorneys: Gibson Dunn & Crutcher LLP, Sive Paget & Riesel PC, for HLP; Normal Spiegel, for NYSDEC).