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.
March 22, 2011
Mayor Michael R. Bloomberg and City Council Speaker Christine C. Quinn recently released a sweeping plan to revitalize and capitalize on New York City’s 520 miles of shoreline. In addition to a three-year action agenda to complete 130 already-funded projects, it also provides specific plans and goals for various waterfront areas throughout the City.
The plan focuses not only on waterfront access and redevelopment of waterfront sites, but also improving water quality, restoring and enhancing waterfront habitats, and improving coordination between governmental agencies with overlapping jurisdiction over waterways and waterfront sites – one of the major stumbling blocks that has stood in the way of effective action. The plan also recognizes the need to consider and address the potential impacts of climate change and sea level rise in waterfront projects.
To advance these goals, the plan identifies site-specific projects in 22 reaches of the City’s waterways, and identifies several additional waterfront redevelopment sites. The plan also includes specific steps that should be taken to implement NYHarborWay, the Bloomberg Administration’s initiative to make New York Harbor a major recreational destination, and to connect Brooklyn Bridge Park, Governors Island, Hudson River Park, The Battery, Ellis Island, Statue Liberty Island, the East River Esplanade and Liberty State Park by ferry and/or bike greenways.
SPR has successfully guided many major waterfront projects to completion, and the plan includes several current projects on which SPR has served or currently serves as counsel, including: completion of Brooklyn Bridge Park, the redevelopment of the Admiral’s Row site at the Brooklyn Navy Yard, redevelopment of the former Domino Sugar factory in Williamsburg, the proposed expansion of the New York Container Terminal on Staten Island, the next phase of development of Arverne by the Sea in the Rockaways, redevelopment of the Battery Maritime Building in Lower Manhattan, and redevelopment of Pier A in Battery Park.
The City will track the progress of its various waterfront initiatives on its website on an ongoing basis. The plan and the updates can be accessed here.
March 9, 2011
The New York City Department of Environmental Protection (“NYCDEP”) has issued new asbestos regulations, which became effective February 3, 2011. Examples of new provisions include:
- revisions to the definitions of “asbestos project” and “building materials”;
- new requirements for the contents of work place safety plans;
- clarification of certain items subject to the asbestos exemption certification;
- modifications to monitoring report requirements; and
- new specifications for required signage.
All property owners and contractors should be sure they are in compliance with the latest regulations. Please contact us for more information on these recent changes.
February 16, 2011
SPR attorneys recently served as environmental counsel to Acumen Capital Partners in its acquisition of the former Pfizer manufacturing facility in Brooklyn. The plant, comprising 660,000 square feet, had been vacant since Pfizer operations ceased there in 2008. Pfizer traces its corporate origins to the neighborhood, having commenced its operations there in 1849.
Plans for the property include conversion to light industrial and commercial uses. Acumen seeks to incorporate environmental sustainability into its redevelopment projects, and is known for constructing a rooftop farm comprising 43,000 square feet on another former industrial property in Long Island City. Five acres of undeveloped property remain north of the former Pfizer plant, which Pfizer has envisioned for potential development as affordable housing.
SPR represented Acumen in evaluating the environmental aspects of the purchase of the plant. For more information contact Michael Bogin or Jeff Gracer.
September 28, 2010
Yesterday, the Environmental Protection Agency (“EPA”) announced the addition of Newtown Creek between Brooklyn and Queens to the Superfund National Priorities List (“NPL”). The listing, which is expected to be formally published this Wednesday, will initiate an EPA-led cleanup of the Creek, beginning with a remedial investigation into the sources of contamination and an expanded search for potentially responsible parties (“PRPs”).
The 3.8 mile-long waterway contains decades of industrial contamination. It is the second Brooklyn waterway added to the federal Superfund list this year, as EPA designated the Gowanus Canal as an NPL site in March 2010. New York City, the New York State Department of Environmental Conservation, and local community groups all supported Newtown Creek’s addition to the NPL. However, some have raised concerns regarding the listing’s potential effect on planned developments along the Creek, which include proposed affordable housing and open space.
EPA first proposed the Newtown Creek listing a year ago, taking public comment on its plan through last December. As of July 2010, EPA had identified six possible PRPs for the Newtown Creek contamination: BP America, Inc., Brooklyn Union Gas Company d/b/a National Grid NY, the City of New York, ExxonMobil Oil Corporation, Phelps Dodge Refining Corporation and Texaco, Inc. More PRPs are likely to be added following the listing as EPA attempts to recover its investigation and remediation costs.
June 23, 2010
The New York State Department of Environmental Conservation (DEC) has released a draft memorandum of agreement (MOA) between DEC and the New York City Mayor’s Office of Environmental Remediation (OER), as well as an accompanying addendum, which together provide for the two agencies’ coordinated oversight of brownfield cleanups in the five boroughs.
The MOA would assign to OER the lead role in supervision and remedy selection for certain contaminated or possibly contaminated properties within the city limits.[1] These cleanups would be conducted through the NYC Local Brownfield Cleanup Program,[2] on behalf of DEC and in accordance with DEC’s brownfield cleanup standards.[3] The MOA’s alignment of City and State cleanup programs represents a success for Mayor Bloomberg, who has sought such coordination as part of PlaNYC since the plan’s unveiling in 2007.[4]
A key element of the agreement is a declaration that DEC “does not plan or anticipate” initiating enforcement actions under state or federal Superfund statutes for sites that are remediated through the City cleanup program and pursuant to the MOA.[5]
The MOA also provides that OER may supply technical assistance to DEC for petroleum spills at sites participating in the City cleanup program, that OER must comply with certain community participation requirements, and that OER must report designated information about sites to DEC over the course of city-supervised cleanups.
DEC is accepting public comment on the proposed MOA and its addendum until Friday, July 9. DEC and OER provide additional information on the MOA and their respective brownfield cleanup programs on their websites.
Dan Mach is a summer associate at Sive, Paget & Riesel, P.C.
[1] Draft MOA, Section III.a.
[2] The Local Brownfield Cleanup Program was created by the New York City Brownfield and Community Revitalization Act, authorized by the City Council and signed by the Mayor on May 11, 2009.
[3] DEC has statutory authority to delegate its functions to local governmental entities. N.Y. Envtl. Conserv. Law § 3-0301(2)(p). Cleanup standards would be defined under the state brownfields cleanup program regulations, codified at 6 NYCRR §§ 375-1, 375-3.
[4] PlaNYC Report 46-47 (Apr. 22, 2007).
[5] Draft MOA, Section IV.a.
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