To read the entire Alert, please click here.
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).
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...
This Jaeckle Alert, prepared by the attorneys at Jaeckle Fleischmann & Mugel, LLP, is intended for general information purposes only and should not be considered legal advice or an opinion on specific facts. For more information on these issues, contact one of the attorneys listed above or your existing Firm contact. Prior results do not guarantee a similar outcome. The invitation to contact is not a solicitation for legal work in any jurisdiction in which the contacted attorney is not admitted to practice. Any attorney/client relationship must be confirmed in writing. Copyright 2010 Jaeckle Fleischmann & Mugel LLP, Buffalo NY. All Rights Reserved.