October 24, 2012
On October 19th, the Municipal Art Society and the New York City Landmarks Commission (LPC) published an in-depth guide (“Guide”) to increasing the energy efficiency of historic rowhouses in New York City by employing measures such as the installation of rooftop solar panels. The guide provides resources for rowhouse owners seeking to improve the energy efficiency of their buildings in ways consistent with the special regulatory requirements applicable to historic buildings.
Increasing the energy efficiency of historic buildings is an important component of decreasing the overall greenhouse gas emissions (GHG) of New York City and meeting PlaNYC’s goal of a 30% reduction in such emissions by 2030. Presently, over 75% of the city’s GHG emissions come from buildings, and over 50% of the city’s building stock consists of buildings constructed before 1940.
Generally, any exterior change to a designated historic building, such a landmarked building or a building in a New York City historic district, is subject to the approval of the LPC, even if a permit from the Department of Buildings is not required. The Guide provides useful details on a variety of measures to improve energy efficiency with minimal architectural impact, such as weatherizing buildings, using energy-efficient heating and lighting controls, and installing basement and roof insulation.
The Guide also discusses the installation of solar panels on historic buildings, a project with the potential for a significant aesthetic effect. However, the Guide notes that most solar panel installations for flat or low-slope roofs, such as those often found on historic rowhouses, are approved by the LPC at the staff level, without need for a public hearing before the full commission. Hopefully this recent publication will encourage LPC staff to streamline the approval process for solar installations that meet applicable guidelines.
October 17, 2012
On October 10, 2012, the Lightstone Group (“Lightstone”) received conditional approval from Community Board 6 for its proposal to construct 700 apartments, community facilities, commercial space and a waterfront front esplanade along the Gowanus Canal. Sive, Paget & Riesel is serving as environmental counsel for Lightstone’s redevelopment project, which will occupy two city blocks to the west of the Canal.
The key environmental issues were the environmental remediation of the Site, the Site’s relationship to the Gowanus Canal Superfund Site, reconstruction of the historic bulkhead, planning for projected sea level rise, and the avoidance of significant adverse impacts on combined sewer overflows into the Canal.
David Yudelson, a partner at Sive Paget & Riesel, has been working cooperatively with federal, state and local agencies to address these issues. In addition, Mr. Yudelson has been working with the United States Environmental Protection Agency (“EPA”) on an agreement to dovetail the proposed redevelopment with the forthcoming Gowanus Canal Superfund remedy, which EPA is anticipated to propose over the coming months.
Mr. Yudelson and Sive, Paget & Riesel have been representing a number of prospective purchasers, owners, developers respecting these issues on other properties on the Gowanus Canal since 1996, including Gowanus Green, Toll Brothers, Woodenbridge LLC, Whole Foods, and MCIZ. The Firm is also representing potentially responsible parties with respect to the Superfund cleanup of the Canal. For further information, please contact David Yudelson at email@example.com or 917-295-6449.
October 12, 2012
On October 3, 2012, Governor Cuomo signed into law a nine-month extension of the availability of tax credits under New York State’s Brownfield Cleanup Program (“BCP”). The previous version of the Program required sites in the program to receive their certificate of completion (“COC”) from the Department of Environmental Conservation (“DEC”) by March 31, 2015 in order to qualify for tax credits under the BCP; now, sites may qualify if they receive their COC by December 31, 2015. According to the most recent annual report of DEC’s Division of Environmental Remediation, it takes approximately three years for a brownfield site to move through the BCP. It remains to be seen, however, whether a longer-term extension of the BCP tax credits will be taken up by the Legislature in the upcoming term.
SPR is currently working with numerous clients who are developing brownfield sites through the BCP. For additional information on the BCP, please contact Mark Chertok, Michael Bogin, Christine Leas, or Michael Lesser.
October 10, 2012
With towns, villages and other municipalities across New York facing major decisions about the potential for high-volume hydraulic fracturing (“hydrofracking” or “fracking”) in their communities, Sive, Paget & Riesel P.C. and the Government Law Center at Albany Law School recently co-sponsored an all-day conference on “Municipal Law and Planning: A Local Perspective on Hydrofracking.” The September 28, 2012 conference attracted more than 130 participants and featured a broad range of speakers, including Sive, Paget & Riesel Principals Chris Amato and Steven Barshov.
Units of local government are anticipated to be among those most affected by the potential introduction of high-volume hydraulic fracturing. With New York State’s anticipated delay in finalizing its environmental review and proposed regulations of hydrofracking, local officials currently have an opportunity to assess and update their comprehensive plans, zoning laws, and municipal codes in advance of any new drilling.
The conference focused on the application of local land use and planning tools to control fracking and its impacts. Chris Amato spoke on the review of hydrofracking under SEQRA, and Steven Barshov spoke about the powers of municipalities to regulate fracking and the interconnection between local comprehensive plans and the currently proposed State regulations. Other topics discussed included the current status of the Department of Environmental Conservation’s proposed regulations and environmental review; water withdrawal and disposal issues; municipal ethics, particularly ethical considerations if municipal officials or their families enter into new drilling leases leases; updates on pending litigation concerning local bans and motaria; and training opportunities for municipal officials.
A program description is available, and a video of the conference will shortly be posted, online at http://www.albanylaw.edu/glc/programs/Pages/recent-events.aspx. For more information on the conference or municipal regulation of hydrofracking, contract Chris Amato or Steven Barshov.
October 5, 2012
A Broome County judge this week invalidated the City of Binghamton’s local law that prohibited any land, body of water, building or other structure within the city to be used for new natural gas drilling exploration, extraction, or support activities.
Binghamton’s ordinance, which was scheduled to expire on its own on December 31, 2013, was not a zoning law, but was rather adopted under the city’s police powers. The court found that the December 2013 expiration date made the local law a moratorium, or emergency stop-gap measure, and that it was thus required to demonstrate a dire need for the measure. Because the New York State Department of Environmental Conservation has yet to approve regulations that would permit natural gas drilling in the state, the court reasoned, Binghamton had not demonstrated that any dire emergency existed for which the moratorium was required.
Despite the invalidation of the Binghamton ordinance, the Community Environmental Defense Council, counsel for Binghamton, heralded the decision as largely upholding the power of local governments to enact land use laws restricting natural gas exploration, storage and extraction. Justice Ferris Lebous, the presiding judge in the matter, adopted as “well reasoned” and “well founded” the prior decisions in Anschutz Exploration Corp. v. Town of Dryden (Tompkins County) and Cooperstown Holstein Corp. v. Town of Middlefield (Otsego County), which ruled that the state Gas Mining Law, ECL § 23-0303(2), does not supersede local governments’ rights to regulate the use of lands within their jurisdiction. The decisions in both of those cases, which upheld local bans on hydrofracking, have been appealed. Binghamton’s mayor has indicated that he will likely seek appeal as well.
As the Times-Union reports, more than 30 local governments in New York have enacted bans on gas drilling, and more than 80 have enacted moratoria.
The Broome County ruling follows on the heels of a decision in federal court dismissing the lawsuit brought by the New York Attorney General and environmental groups seeking federal environmental review of proposed natural gas drilling in the Delaware River basin. Judge Nicholas Garaufis of the Eastern District of New York found that the plaintiffs’ claims were speculative and relied “on a chain of inferences that may never come to pass,” and thus that the plaintiffs did not have standing to sue. Specifically, the Delaware River Basin Commission has issued draft regulations that would allow hydraulic fracturing in the basin, but has not yet finalized those regulations. Because the regulations are still in draft form, the court refused to find that an injury was imminent.
October 1, 2012
On September 25, 2012, the Federal Highway Administration, New York State Department of Transportation, and New York State Thruway Authority approved a Joint Record of Decision and Findings Statement for the Tappan Zee Hudson River Crossing Project (the “Project”), concluding the extensive environmental review for the proposed replacement of the existing Tappan Zee Bridge. Sive, Paget & Riesel is serving as special environmental counsel for the Project, which has been designated by the Obama Administration as a high-priority for the nation’s infrastructure needs.
The 3.1 mile-long Tappan Zee Bridge was built in 1955, and it is projected to cost the state approximately $1.3 billion over the next decade in upkeep and repairs. The Project is intended to address the structural, operational, safety, security, and mobility needs of the crossing, maintaining a vital link in the regional and national transportation network while addressing the shortcomings of the existing bridge. An Environmental Impact Statement (“EIS”) for a replacement was prepared to satisfy environmental review requirements under the National Environmental Policy Act (“NEPA”) and State Environmental Quality Review Act (“SEQRA”). After accepting public comment on both the draft and final EIS earlier this year, the lead agencies approved a replacement that includes two new bridge structures (one eastbound and the other westbound) just north of the existing location.
The selected alternative includes multiple Environmental Performance Commitments (“EPCs”) and mitigation measures to avoid, minimize, and offset potential environmental impacts, including - among others - the use of noise barriers, use of ultra-low-sulfur diesel fuel and emissions controls on construction equipment, restricted periods for dredging and pile driving activities, restoration of local oyster habitat, wetlands enhancements at a nearby marsh, tracking and study of endangered sturgeon species, and use of protective measures such as bubble curtains to reduce underwater noise during pile driving.
For more information on the Tappan Zee Bridge replacement, or the environmental review of other major infrastructure projects, contact David Paget.