DEC ordered to admit site into brownfield program

Court previously overturned DEC’s denial of developer’s application and ordered additional analyses. A developer planned to construct a 341-unit mixed-use building on a 17,700 sq.ft. parking lot at 29 Flatbush Avenue in Fort Greene, Brooklyn. An environmental assessment of the site revealed the presence of lead and semi-volatile organic compounds. The developer subsequently applied to the State Department of Environmental Conservation’s Brownfield Cleanup Program.

DEC determined that the property did not meet the statutory definition of a brownfield site and denied the application. Although DEC acknowledged that the property’s contamination levels exceeded regulatory standards, it found that the contamination would not complicate development of the site. The developer filed an article 78 petition challenging the determination.

Justice Arthur M. Schack vacated the decision, ruling that DEC’s interpretation of its “complication of development” test contravened the statutory requirement that the definition of a brownfield site be broadly construed. Justice Schack, however, noted that an improper denial did not mean the site should be automatically included in the program and ordered the developer to submit to DEC additional environmental and financial studies. 7 CityLand 80 (June 15, 2010).

The developer moved to re-argue, claiming that the information previously submitted to DEC was sufficient to determine that the site was eligible for the brownfield cleanup program. Justice Schack agreed and ordered DEC to admit the site into the program. Schack ruled that the original application’s documentation of multiple soil contaminants was sufficient to show that the property met the definition of a brownfield site. Citing to past case law, Justice Schack reasoned that contaminants in excess of regulatory standards inherently complicate the development of a site and found that it was unnecessary for the developer to demonstrate complications in obtaining financing for the project.

29 Flatbush Associates LLC v. NYSDEC, 2011 N.Y. Slip Op. 50407U (Kings Cty. Sup. Ct. March 22, 2011) (Schack, J.) (Attorneys: Knauf & Shaw, for developer; Andrew M. Cuomo, Isaac Cheng, for New York).

update: originally published as 50778U

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