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Court of Appeals Decision Opens New Opportunities for the NYS Brownfield Cleanup Program

Release Date: July 27, 2010

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For more information regarding the Brownfield Cleanup Program, please contact Dennis P. Harkawik at 716.843.3848 or dharkawik@jaeckle.com.

Eligibility into the tax credit-rich Brownfield Cleanup Program (BCP) has been eased by the New York State Department of Environmental Conservation (NYSDEC) due to a recent New York Court of Appeals decision in LighthousePointe Property Assoc. v. NYSDEC, 14 NY3d 161 (2010).

If a site exceeds cleanup standards, it appears that the site is now eligible for inclusion into the program. This ease of eligibility returns the BCP to its earlier days, when NYSDEC was eager to get sites into the Program.

In LighthousePointe, the court was reviewing NYSDEC's refusal to accept contaminated land into the BCP. NYSDEC had determined that the land, which was contaminated in excess of various cleanup levels, was not a "brownfield" as defined in the BCP statute, and thus was ineligible for acceptance into the Program. The Court reversed and found that, as a matter of law, LighthousePointe was eligible for acceptance into the program.

The Court held that the statutory eligibility threshold was low and consisted of two things:

1. The presence or potential presence of a contaminant on the site, regardless of the level of contamination, and

2. The presence or potential presence of contamination at the site makes redevelopment or reuse more complex, involved or difficult in some way - that is, the contamination complicates redevelopment or reuse.

The Court held that if these two simple conditions are present, NYSDEC must find that the site is a brownfield, and must accept the property into the BCP, so long as the applicant and the site is otherwise qualified to be in the program.

In LighthousePointe, the Court found that there was sufficient evidence in the record to establish that the site at issue was contaminated and that without acceptance into the BCP and a resulting NYSDEC-sanctioned remediation, the development would not receive necessary financing. More...

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