DEC denied access to State’s brownfield cleanup program on theory that contamination did not complicate development. In 2007, a developer purchased a 17,700 sq.ft. former parking lot at 29 Flatbush Avenue in Fort Greene, Brooklyn, intending to build a 342-unit residential building. An environmental assessment of the site’s subsurface revealed the presence of lead and at least seven semi-volatile organic compounds at levels exceeding regulatory standards. In April 2008, the developer filed an application with the State Department of Environmental Conservation to participate in its Brownfield Cleanup Program.

DEC determined that the property did not meet the statutory definition of a brownfield site and denied the application. DEC acknowledged the presence of contamination at levels above regulatory standards, but found that it would not complicate the site’s future development. In its denial, DEC stated that the contamination appeared to be limited to historic fill, and that its random distribution indicated there would not be a need to excavate and dispose of any soil. DEC concluded that clean up costs would be insignificant compared to the anticipated value of the site after the proposed development. The developer filed an article 78 petition challenging the determination.

Justice Arthur M. Schack vacated DEC’s decision, ruling that DEC’s interpretation of its “complication of development” test was contrary to the statutory requirement that the definition of a brownfield site be broadly construed. Justice Schack found that DEC discounted the contamination readings and “brushed aside” evidence of high lead concentration. Noting that an improper denial did not mean the site should be automatically included into the program, Justice Schack ordered the developer to conduct additional environmental studies and resubmit its application to DEC.

29 Flatbush Associates LLC v. NYSDEC, 2010 N.Y. Slip Op. 50778U (Kings Cty. Sup. Ct. May 3, 2010) (Schack, J.).