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Fourth Department upholds DEC's decision not to accept property into Brownfields Cleanup Program

On February 6, 2009, the Appellate Division, Fourth Department, reversed a trial court and held, by a 3-1 vote, that DEC's decision not to admit Lighthouse Pointe Property Associates, LLC into the Brownfield Cleanup Program was not arbitrary and capricious. The majority cited the recent Court of Appeals' decision in Riverkeeper, Inc. v. Planning Board of the Town of Southeast, 9 N.Y.3d 219 (2008) in holding that "it is not the province of the courts to second-guess a reasoned agency determination or to invade the process by which such a conclusion is reached."

Comments (1)

Alan J. Knauf:

As attorney for the petitioner Lighthouse Pointe Property Associates, I can tell you we will be seeking review by the Court of Appeals. Please read the dissent!

The majority missed the fact that DEC did not apply the correct statutory test, totally ignoring the complication factor. The site includes a former solid waste landfill that is on the DEC hazardous substance site list. A few years ago, DEC authorized DOT to bury lead-tainted soil that failed the TCLP test on site without a TSDF permit. We measured 175 exceedances of SCOs, all 9 groundwater wells tested contaminated, and soil vapors exceeded EPA screening values, so a $4-8 million remediation is required. The Monroe County Health Department considers the property a health threat, and will not approve any permits unless the property is remediated under the supervision of DEC, but DEC says it has no jurisdiction. Plus the developer cannot get financing without the BCP liability release. So if not being able to get permits or financing is not a complication, I don't know what is! Also, DEC turned down the site because it claimed that solid waste was ineligible, even though there is no such exclusion in the law.

Lighthouse Pointe would be a world-class mixed use development at Rochester Harbor that would rival Toronto, and include a promenade along the river for the public, shops, restaurants and condos. Unfortunately, DEC and now the court have stopped this effort to turn a toxic mess into a great development, since it will not happen without the BCP. Is anyone at DEC listening to us in Western New York? Brownfields will be left untouched without a brownfields program.

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