January 25, 2012
The New York City Department of City Planning (“DCP”) has proposed amendments to the New York City Zoning Resolution, expanding the environmental (E) designation program that identifies sites of potential environmental concern. The Mayor’s Office of Environmental Remediation (“OER”), which administers the E designation program, is anticipated to publish draft rules to implement the proposed changes in coming weeks.
During area-wide rezonings, the Zoning Resolution authorizes the placement of E designations on affected lots with potential significant adverse air quality, noise or hazardous materials impacts. Before undertaking any land use or property changes that require a building permit from the Department of Buildings (“DOB”), owners of designated lots must first receive approval from OER that E designation requirements have been satisfied, which may involve additional environmental analysis or remediation.
DCP has summarized the proposed changes to the E designation and related sections of the Zoning Resolution, broadly characterizing the revisions in six categories: environmental restrictive declarations; applicability; enforcement; post-approval modifications; ongoing monitoring; and duplicative and outdated text updates.
Most importantly, the amended text makes the E designation program applicable to environmental restrictive declaration (“RD”) properties, the first step in doing away with the practice of using environmental RDs. Currently, DCP uses RDs to ensure investigation and any necessary environmental remediation on applicant-controlled properties in connection with zone changes, variances, special permits and other DCP-issued authorizations. The E-designation program currently only applies to zoning map amendments; typically, area-wide rezoning. The proposed amendments would merge both into an expanded E designation program.
The City Planning Commission held a public hearing on the Zoning Resolution amendment on January 4, 2012 and will continue its review through February 29, 2012. The City Council will then have 50 days to review the amendment. OER has also indicated that it will be publishing its draft rules implementing the E designation program in the coming weeks. Sive, Paget & Riesel is tracking these developments, and will continue to provide updates as the zoning amendment is finalized and the OER rules become available for review and comment.
For more information on E designations, contact Christine Leas or David Yudelson.
January 18, 2012
New York City developers now have a new factor to consider in project design. On January 4, 2012, the Department of Environmental Protection (“DEP”) adopted a new stormwater performance standard (the “performance standard”), requiring large and medium-scale development projects in combined sewer areas to incorporate larger detention basins or install relatively expensive green or blue roof systems. The performance standard also imposes stormwater reduction requirements on certain building alterations that increase impervious surfaces.
The DEP rules amend Chapter 31 of Title 15 of the Rules of the City of New York, which regulates the construction, permitting, and inspection of sewer connections. For a new development, the performance standard establishes a “stormwater release rate” equal to the greater of 0.25 cubic feet per second (“cfs”) or 10% of the new development’s “allowable flow,” the stormwater flow that can be released into a storm or combined sewer based on existing sewer design criteria. In no case, however, will the new release rate exceed allowable flow.
For medium and large sized lots, these changes would effectively require a significant increase in stormwater detention on site. Lots smaller than 5,000 square feet are not likely to have a release rate that exceeds 0.25 cfs, so they will probably only need to comply with existing sewer availability and connection application process requirements.
Redevelopment projects in combined sewer areas may also need to meet new performance requirements. If a redevelopment requires an alteration permit from the Department of Buildings (“DOB”) and will increase existing impervious surfaces (including building footprints) by more than 20%, the release rate for the altered area must be proportional to the ratio of the altered area to the total site area. Moreover, on such projects, no new points of stormwater discharge are permitted. Proposed redevelopments that increase impervious surfaces or building footprints by 20% or less are exempt from the stormwater performance standard unless an additional sewer connection is proposed.
In addition to the new performance standard, the DEP and DOB have developed new “Guidelines for the Design and Construction of Stormwater Management Systems” (the “Design Manual”) which the City hopes “will ease the development community’s transition to stricter stormwater release rates when connecting to the City’s combined sewer system.” The stormwater performance standard and Design Manual are key elements of the broader New York City “Green Infrastructure Plan” unveiled by Mayor Bloomberg on September 28, 2010, which aims to reduce combined sewer overflows (“CSOs”) into the City’s waterways by 40% by 2030.
Finally, because the City expects more stringent federal and state Municipal Separate Storm Sewer Systems (MS4) requirements to be published within the next year, the City expects to revisit the stormwater performance standard and the Design Manual to add stormwater management requirements in separately sewered areas. The City will then also revisit the adequacy of the stormwater management program in combined sewer areas.
For more information on the new stormwater performance standard, contact Michael Bogin.
October 25, 2011
In a draft Consent Agreement unveiled last week, the New York State Department of Environmental Conservation (“DEC”) and the New York City Department of Environmental Protection (“DEP”) proposed a $2.4 billion public and private investment in green infrastructure over the next 20 years to reduce discharges during combined sewer overflows (“CSOs”). CSOs currently discharge approximately 30 billion gallons of untreated sewage and polluted stormwater into New York Harbor each year, typically during and following heavy rainfall, resulting in significant water quality and environmental issues.
CSOs are common in older cities where the sewer system was designed to convey both wastewater and stormwater runoff in the same pipes. In dry periods, wastewater – which includes both washwater and sewage – flows by a combination of gravity and pumps to municipal treatment facilities where it is treated before being discharged into a waterbody. Problems can arise during heavy rainfalls, as treatment facilities are not equipped to handle the increased volume of wastewater and stormwater runoff. During CSO events, wastewater and stormwater bypass the treatment facility and are released, untreated, directly into the waterbody.
Municipal stormwater discharges are regulated under Clean Water Act (“CWA”) Section 402(p), 33 U.S.C. § 1342(p) and 40 CFR § 122.26(a)(3), and by DEC pursuant to its delegated CWA authority. Under the terms of a 2005 Consent Order with DEC, DEP is required to reduce water quality impairment caused by CSOs. The new agreement would amend that Order by including new, and more cost-effective, “green infrastructure” compliance options, such as blue and green roofs to slow water from draining too quickly, porous pavement that infiltrates stormwater, the planting of tree pits and streetside swales, and increased use of rain barrels. All of these green infrastructure initiatives are designed to reduce stormwater runoff in order to decrease the volume entering the combined sewer system during a heavy rainfall. Under the revised agreement, the City also agreed to fund $5.15 million in Environmental Benefits Projects, including provision of additional grants for green instrastructure projects on private property.
DEP has estimated that it will invest $187 million in green infrastructure projects by 2015 in an effort to meet its first milestone for reductions in stormwater entering the combined sewer system. If DEP fails to achieve its 2015 milestone, it would be required to submit a contingency plan and could face penalties under the Consent Order.
DEC and DEP will hold a public meeting to discuss the CSO Consent Order modification on November 9, 2011 starting at 6:00 pm at the DEC Region 2, Annex, 11-15 47th Avenue, Long Island City, NY 11101.
September 26, 2011
The United States Environmental Protection Agency (“EPA”) recently awarded federal recognition to New York City’s Brownfield Cleanup Program. This is the first time EPA has recognized a municipal cleanup program. EPA hopes to use New York City’s program as an example to be followed by additional municipalities.
EPA’s formal recognition makes the City eligible to use federal brownfield grants for the investigation and cleanup of contaminated properties. City officials also believe that federal support of the City’s brownfield program will expedite the cleanup and redevelopment of vacant and underutilized properties while creating new businesses, jobs, and affordable housing. Federal recognition augments the formal acceptance of the City’s Brownfield Cleanup Program by the New York State Department of Environmental Conseration (“DEC”).
Significant elements of the New York City Brownfield Cleanup Program, discussed here, include:
- The issuance of a Notice of Completion for cleaned-up properties, which includes a liability release from the City;
- a statement from New York State that DEC has no further interest and does not plan to take enforcement measures or require remedial action for the property under state or federal law; and
- the issuance of a Green Property Certification from the City indicating that the property is protective of public health and the environment.
Federal and state approval of N.Y.C.’s Brownfield Cleanup Program, in combination with the City’s ability to access federal brownfield funding, should strengthen the City’s program.
For more information about the N.Y.C. Brownfield Cleanup Program, please contact Michael J. Lesser.
July 27, 2011
New York City’s Local Law 84 of 2009 (the “Benchmarking Law”) requires owners of certain privately-owned buildings to submit their first annual benchmark of total energy and water use by 11:59 pm on Monday, August 1, 2011. The law requires benchmark reporting to be completed by May 1 of each year, but the New York City Department of Buildings’ recently adopted Benchmarking Rule states that, for 2011, no penalties will be assessed due to failure to comply until August 1. Starting in 2012, reports will be due by May 1. Reported data will be made available to the public beginning in 2012 for non-residential buildings and in 2013 for residential buildings.
Covered buildings include:
- any building that exceeds 50,000 gross square feet (“gsf”);
- two or more buildings on the same tax lot that together exceed 100,000 gsf; or
- two or more condominium buildings that are governed by the same board of managers and that together exceed 100,000 gsf.
Square footage is determined based on the records of the New York City Department of Finance. Covered buildings should have received a notice from the Department of Finance in December 2010. In addition, the City has published a list of the buildings it believes to be subject to the Benchmarking Law.
To comply with the Benchmarking Law, owners of covered buildings must solicit information on energy usage from non-residential tenants, but are not required to do so for residential tenants. Benchmarking of water use is not required unless the building was equipped with automatic meter reading equipment by the New York City Department of Environmental Protection for the entirety of the previous calendar year.
Benchmarking reports must be submitted to the City electronically using the U.S. Environmental Protection Agency’s (“EPA”) Portfolio Manager Tool. Owners of multiple buildings should pay special attention to EPA’s instructions before entering information to ensure that reports are not overwritten by later entries.
The Benchmarking Law is part of New York City’s Greener, Greater Buildings Plan. A component of the Citywide environmental initiative PlanNYC2030, the Greener, Greater Buildings Plan strives to reduce greenhouse gas emissions by 30% by 2030.
For more information on the Benchmarking Law, please contact SPR partner Dan Chorost. To learn more about green building trends beyond New York City, please see Dan’s May 2011 article on this topic.
June 17, 2011
After five years of litigation, an appeals court ruled last week that New York City can proceed with the construction of a marine waste transfer station on the Upper East Side. Local residents had challenged the project, alleging that it appropriated public parkland for non-park purposes and that the city was required to seek legislative approval of the project.
The appeals court upheld the trial court’s findings that the parcels at issue are not public parkland, and that even if they were, the proposed project would not substantially intrude upon them. The court explained that public parks are created either expressly, via deed or legislative enactment, or by implication, through continuous use indicating an “unequivocal” intent to dedicate the parcel as public parkland.
The court found that neither of the two parcels at issue, a recreational complex known as Asphalt Green and a pedestrian path known as Bobby Wagner Walk, qualified as public parkland under this test. The court held that Asphalt Green was not expressly dedicated as parkland because it was acquired by the City for non-park purposes and that a 1989 assignment of part of the parcel to the Department of Parks was conditioned on not mapping that part as public parkland. Asphalt Green did not become public parkland by implication, the court reasoned, because it is operated by a non-City entity and because access is restricted 70% of the time to those who pay membership fees. With respect to Bobby Wagner Walk, the court commented only that it can be “distinguish[ed]…from a park” because the “Department of Transportation owns the property, and it functions primarily as a thoroughfare.”
The new marine transfer station is part of a 2006 strategic plan by Mayor Bloomberg to manage the over 11,000 tons of solid waste the city produces daily. The Comprehensive Solid Waste Management Plan, which according to the New York Times is “affectionately known” as “the Swamp,” was the product of intense negotiations over the equitable siting of new waste facilities in the wake of the closing of the Fresh Kills landfill on Staten Island.
Devin McDougall is a summer associate at Sive, Paget & Riesel
May 13, 2011
Last month, New York City’s Office of Long-Term Planning and Sustainability released an update (“Update”) to PlaNYC, a plan for a “Greener, Greater New York.” The Update is the first full report since the main report was released at the project’s inception in 2007. It provides information regarding the project’s progress, obstacles and shortfalls, and current near and long-term goals.
The 2007 plan presented 127 initiatives. While 97% of these initiatives have already been launched, some have been delayed by a reduction in the City’s capital budget, and others hindered by a lack of federal or state permission, action or funding.
Key Topics of Interest: Neighborhood Development and Brownfields
According to the Update, over 87% of new housing starts since 2007 have been within a half-mile of transit. In addition, the City has created or preserved 110,000 units of affordable housing since 2004, with plans for 165,000 units by 2014. Over 30,000 of these units financed by the City will meet Enterprise Green Communities guidelines for energy efficiency and sustainability. In addition, the City continues to explore underutilized areas as potential new sites for development, including areas of Staten Island and the Bronx.
Progress on brownfields is also reported. In 2008, the City created its Office of Environmental Remediation, which facilitates the nation’s first municipally-run cleanup program (The NYC Brownfield Cleanup Program, or “NYC BCP”). It has also created the Searchable Property Environmental Electronic Database (“SPEED”), an online search engine containing environmental and historic land use information on thousands of sites throughout NYC. The City plans to establish the NYC Community Brownfield Planning District (“CBPD”) Program, under which it will create 25 new NYC Community Brownfield Planning Districts and link these grassroots efforts into larger networks. The City will continue to collaborate with the state and federal governments to improve incentives for brownfield cleanup and development; advocate at the state level for a full liability release for parties who remediate under the NYC BCP; collaborate with local entities to establish low-interest loan programs to fund cleanups; and establish an online document repository for NYC BCP project information. As noted previously on this blog, the City is continuing to encourage participation in this program.
Other Initiatives
The Update discusses the City’s progress in other environmentally-related areas, including:
- reducing greenhouse gas (GHG) emissions (the goal remains to reduce them 30% by 2030 and 80% by 2050);
- using federal stimulus money to install more than 200 electric vehicle (EV) chargers throughout the metropolitan area (including in commercial parking garages);
- retrofitting over 100 City-owned buildings to be more energy efficient;
- implementing regulations to phase out dirty heating fuels;
- planting one million trees;
- preparing for what may be inevitable results of climate change (rising temperatures and sea levels); and
- approximately 400 very specific short-term goals in a variety of areas to be completed by the end of 2013.
For more information on PlaNYC, and to view the many reports that have been published in conjunction with the program, visit New York City’s PlaNYC website.
Laura Friend is a paralegal at Sive, Paget & Riesel.
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