News & Insights 

At Allen & Desnoyers LLP, we keep our clients informed on the most recent developments in the law. On this page, we provide regular updates regarding executive, legislative and judicial activity that may be relevant to our clients. Please check back often:

En-Zone Update - The New York State Department of Environmental Conservation ("DEC") recently posted information for downloading files of mapped boundaries for Environmental Zones ("En-Zones"). The maps are preliminary and subject to finalization by the State Department of Labor. If at least 50% of a brownfield site is located in a designated En-Zone, then it may be eligible for additional tax credits.

Brownfield Cleanup Program Update - Effective July 1, 2015, the New York State Department of Environmental Conservation ("DEC") is accepting applications for the revised Brownfields Cleanup Program ("BCP") passed into law earlier this year. The application, instructions and guidance on the process and eligibility for the revised BCP are available on the DEC website here. DEC also posted a summary of the revised BCP program.

The DEC, as required by the BCP legislation, published notice of proposed changes to Part 365 of 6 New York Code of Rules and Regulations to address the new definitions required by sites located in New York City; specifically, the terms "affordable housing project" and "underutilized." Written public comments on the definitions will be accepted by DEC through August 5, 2015 and it is anticipated that the new rules will be promulgated by October 1, 2015.

The new BCP-EZ program and other required regulatory changes to Part 375 are not anticipated by the DEC until early 2016 with the BCP-EZ program operational in the Summer of 2016.

Brownfield Cleanup Program Regulations
- The New York State Department of Environmental Conservation ("NYSDEC") is proposing to amend its regulations (6 NYCRR Part 375) to implement certain statutory changes made in the enacted 2015-16 State Budget. the proposed rulemaking would define the terms "affordable housing project" and "underutilized" for purposes of the eligibility requirements for tangible property tax credits for brownfields in New York City. The "affordable housing project" definition also affects the amount of potentially available tax credits statewide. The proposed rule would also amend the definition of "brownfield site" in accordance with the new statute. DEC will hold a public hearing of the proposed regulations on July 29, 2015 at 1:00 PM. Both verbal and written comments will be accepted at the hearing. the hearing will be held in the 2nd Floor Auditorium at the NYC Department of Health, 1235 Worth Street, NY, NY. Documents and related information on the proposed rulemaking are available here.

2015 Amendments to the New York State Brownfield Program - Substantial revisions to the New York State Brownfield Cleanup Program ("BCP") are included in the enacted 2015/2016 State Budget. These amendments, which take effect July 1, 2015, will alter many aspects of the Program including, among other things, the criteria for site eligibility and calculation of tax credits. Changes were also made to the Brownfield Opportunity Area ("BOA") Program and Environmental Restoration Program ("ERP").  For a brief explanation of the amendments, please click here.

Governor Cuomo Announces Designation of 12 Brownfield Opportunity Areas - The Brownfield Opportunity Area ("BOA") Program helps local communities establish revitalization strategies that return dormant and blighted areas into productive areas to spur economic development. This designation is based upon plans of varying focus that reflect local conditions, and projects receiving this designation are given priority status for grants and additional Brownfield Cleanup Program tax credit incentives. For more details click here.

EPA Announces New RFP - FY 2014 Brownfields Assessment, Revolving Loan Fund and Cleanup Grant Guidelines - These brownfields grants may be used to address sites contaminated by petroleum and hazardous substances, pollutants, or contaminants (including hazardous substances co-mingled with petroleum). Opportunities for funding are as follows: Brownfields Assessment Grants (each funded up to $200,000 over three years; coalitions are funded up to $600,000 over three years), Brownfields Revolving Loan Fund (RLF) Grants (each funded up to $1,000,000 over five years) and Brownfields Cleanup Grants (each funded up to $200,000 over three years). The proposal submission deadline is January 22, 2014. For more details, click here.

Governor Announces Brownfield Grants - On October 17, 2013, Governor Cuomo announced $10 million in Brownfield Opportunity Area ("BOA") grants for 26 communities throughout the State. These grants provide funding for municipalities to implement revitalization strategies that are necessary to redevelop impacted sites. The Governor's press release may be viewed here

Petroleum and Chemical Bulk Storage Regulations - The New York State Department of Environmental Conversation ("DEC") is inviting public comment on preliminary drafts of revised Petroleum Bulk Storage and Chemical Bulk Storage regulations. DEC intends to revise these regulations regarding the handling and storage of petroleum and hazardous substances to reflect changes in state and federal laws. The drafts and informal public comment period are provided to help inform stakeholders and identify issues to be addressed before the draft regulations are formally proposed. The preliminary drafts for public consideration, information on an upcoming webinar and public meeting and instructions on how to submit comments are available here

Intermediate Appeals Court Upholds Local Zoning Ban on Fracking - On May 2, 2013, the Supreme Court, Appellate Division, Third Judicial Department held  that preemption language contained in Article 23 of the Environmental Conservation Law preempts only local laws that attempt to regulate the  "details or procedure of the oil, gas and solution mining industries," and not those that "establish permissible and prohibited use of the land." See Norse Energy Corp. v. Town of Dryden. Norse Energy Corp., which owns significant mineral rights in the Town of Dryden, also argued that the Town's zoning ordinance banning gas drilling conflicts with the general provisions of the New York State mining laws, which call for regulation to prevent waste and provide for "a greater recovery of oil and gas." In upholding Dryden's zoning ordinance, the Court reconciled the provisions by citing language in the statute calling for the protection of "all persons including landowners and the general public. On the same day, the Court decided a similar case involving the Town of Middlefield. See Cooperstown Holstein Corp. v. Town of Middlefield.

Environmental Remediation Program ("ERP") Funding - For the first time since 1996, the Governor and Legislature have agreed to an infusion of funding for the cleanup of municipal toxic sites. It is a relatively small budget item, about $12 million, but will mean a great deal to cities that had unfinished cleanup projects when the original $200 million ERP fund ran out of money. For more on this topic, please click here

A&D Continues to Grow! - Allen & Desnoyers LLP is pleased to announce that effective March 25, 2013, George J. Hoffman, Jr., joined the firm. George has been a friend and colleague for more than 16 years and we are excited to have him on board. With over 16 years of litigation and appellate practice experience, George will focus on appellate advocacy, environmental/toxic tort litigation, insurance coverage, premises liability, class-action litigation and criminal defense. George has handled all aspects of civil litigation, including perfecting and arguing appeals in the New York State Appellate Division in the Second, Third and Fourth Departments. His association with A&D will add significant depth to our appellate and litigation practice. Please join us in welcoming George!

2012 Tax Credit and Brownfield Redevelopment Reports Posted - The New York State Department of Taxation and Finance ("DTF") issued the 2012 Brownfield Credit Report as required by Chapter 390 of the Laws of 2008 and it can be found on the DTF website here. Additionally, DTF posted the Brownfield Redevelopment Reports submitted pursuant to Tax Law Section 171-s, which requires all developers and their lessees to submit a Brownfield Redevelopment Report within one year after the execution of a Brownfield Cleanup Agreement and annually for 11 years thereafter. These redevelopment reports may be found on the DTF website here.

New York State Brownfield Tax Credits - An Emerging Opportunity? On March 7, 2013, Dale Desnoyers and Val Washington will be presenting on current brownfield tax credit issues at a New Partners for Community Revitalization roundtable event. The event will be held at the offices of Edwards Wildman Palmer LLP at 750 Lexington Avenue (59th Street), NY, NY. For more detail, please click here.

Assembly Brownfields Hearing - On December 19, 2012, the New York State Assembly will hold a public hearing to examine the effectiveness of the State's Brownfield Cleanup Program. For a copy of the hearing notice, please click here.

Police Discipline Decision - On October 25, 2012, the New York State Court of Appeals, in Matter of Town of Wallkill v. Civil Service Employees Association, Inc.ruled that police discipline may not be a subject of collective bargaining when the Legislature has expressly committed disciplinary authority over a police department to local officials. For more discussion of the case, please click here

Brownfields SEQRA Decision - On October 23, 2012, New York State's highest court, in Matter of Bronx Committee for Toxic Free Schools v. NYC School Construction Authority, ruled on the relationship between the State Brownfield Clean-up Program ("BCP") and State Environmental Quality Review Act ("SEQRA"). The issue was whether the City School Construction Authority violated SEQRA by failing to discuss in an Environmental Impact Statement ("EIS") the controls used to prevent or mitigate environmental harm following the brownfield clean-up. In affirming the lower courts, the Court of Appeals held that the authority must supplement its EIS to describe its plan for maintenance and monitoring of the controls it used on the project. The Court acknowledged that an agency preparing an EIS has broad discretion in deciding what to include and what to omit. Nonetheless, because Petitioners' showing as to the importance of the controls was unrebutted by the Authority, the Court agreed that "the methods chosen by the Authority for long-term maintenance and monitoring of its engineering controls were too important not to be described in an EIS." To view the decision, please click here.

Explanation of Brownfields Tax Credits - Dale Desnoyers and Val Washington offer a brief explanation of brownfield redevelopment tax credits. To view the article, please click here.

Associated General Contractors Industry Conference - On December 5, 2012, Dale Desnoyers and Val Washington will present on opportunities to realize sustainable community redevelopment on brownfields at the 26th annual Construction Industry Conference hosted by the Associated General Contractors of New York State. The conference will be held at the Saratoga Hilton at City Center in Saratoga Springs, New York. For more conference details, click here

Brownfields Extender Bill Approved - On Wednesday, October 3, 2012, Governor Andrew M. Cuomo signed into law, as Chapter 474 of the Laws of 2012, a bill extending the tax credits associated with the State's Brownfield Cleanup Program. Availability of brownfield tax credits were set to expire on March 31, 2015; Chapter 474 will delay the sunset of those tax credits until December 31, 2015, giving program participants nine (9) additional months to complete their work and obtain a Certificate of Completion from the Department of Environmental Conservation

Business Council of New York State -Dale Desnoyers will be speaking at the 2012 Annual Industry-Environment Conference, which will be held at the Gideon Putnam from October 17th - 19th. This two-day event brings together close to 300 experts from both the public and private sectors to interact and share the latest information relevant to environmental issues in New York State. Dale will be speaking on the development of New York State's brownfields program as part of a panel discussion of the past, present and future of brownfields within the State. Further event details may be found here.

National Brownfields Association ("NBA") - On September 26, 2012, Dale Desnoyers will be speaking at an NBA event at the Tift Nature Preserve, 1200 Fuhrman Boulevard, Buffalo. The title of the program is "Building Sustainable Communities." This full-day workshop will show the state, regional and local resources that are available to create sustainable communities and discuss the sustainable vision for Western New York. Dale and other instructors will exchange ideas, share experience and use case studies showing cities that have transitioned to become vibrant again. Further event details may be found here.

Cayuga Indian Nation Immune From Tax Forclosure - In a decision dated August 20, 2012, United States District Court Judge Charles J. Siragusa granted the Cayuga Indian Nation of New York a preliminary injunction prohibiting Seneca County from foreclosing on certain real property owned by the Nation within the boundaries of the 64,000-acre Cayuga Indian Reservation acknowledged by the 1794 Treaty of Canandaigua.

High Court Rules City and State Have No Obligation to Pay NYC OTB Health Insurance Benefits - By decision dated June 28, 2012, the New York State Court of Appeals unanimously affirmed an order of the Appellate Division, which held that the City and State of New York are precluded by NY Constitution, article X, § 5, and Racing, Pari-Mutuel Wagering and Breeding Law § 614 from assuming a legal obligation to pay the health insurance benefits of retirees of the former New York City Off-Track Betting Corporation.

National Brownfields Association ("NBA") - On July 18, 2012, Dale Desnoyers will be speaking at an NBA Networking Session in Buffalo, New York at the Offices of Phillips, Lytle LLP, 3400 HSBC Center. The title of the program is "The Brownfield Cleanup Program: Will Your Tax Credits Be Available?" Dale and other members of the Executive Committee will share their persepectives on how the current tax credit controversy is affecting redevelopment within the State. They will also discuss efforts to address the 2015 sunset of the Brownfield Cleanup Program. Further event details may be found here.  

Second Circuit Vacates Shinnecock Injunction (Click for more) - In a 2-1 decision, dated June 25, 2012, a three-judge panel of the Second Circuit Court of Appeals vacated a judgment of the United States District Court granting a permanent injunction prohibiting the Shinnecock Indian Nation and its tribal officials from developing a casino on a plot of land known as “Westwoods” without complying with the laws of the State of New York and Town of Southampton.

Northeast Sustainable Communities Workshop (Click for more) - On June 7, 2012, Dale Desnoyers will be presenting at the Workshop at John Jay College. The Workshop will focus on the intersection of sustainability, brownfields and the future of our communities. This is an interactive forum to discuss the issues that affect businesses and communities.

New Partners for Community Revitalization - 6th Annual Brownfield Summit (Click for more) - On June 4, 20120, Dale Desnoyers and Val Washington will be presenting on current brownfield issues. The Summit will be held at the Albany Holiday Inn Express, 300 Broadway, Albany, New York, 12207.

New York State Association of Affordable Housing - 13th Annual Conference (Click for more) - On May 17, 2012, Dale Desnoyers will be presenting on current brownfield issues, including successfully navigating through the Brownfield Cleanup Program and brownfield tax credits. The Conference will be held at the Marriot Marquis in New York City.

Important New Clean Water Act Decision (Click for more) - On March 21, 2012, the United States Supreme Court decided the case of Sackett, et vir, v. Environmental Protection Agency, et al. This important decision upholds the rights of landowners who challenge compliance orders issued by the United States Environmental Protection Agency (“EPA”) under the federal Clean Water Act.

2011 Brownfield Redevelopment Reports Posted (Click for more) - 

Developers of brownfield sites are required to file an annual report with the New York State Department of Taxation and Finance ("DTF") pursuant to Tax Law § 171-s. 

The 2011 Reports can be found on the DTF website here:

2011 Tax Credit Report Issued (Click for more) On January 31, 2012, the DTF issued the 2011 Brownfield Credit Report as required by Chapter 390 of the Laws of 2008. The Report can be found on the DTF website here.

Brownfield Opportunity Areas (Click for more) - On January 25, 2012, Senator Mark Grisanti of Buffalo, Chairman of the Senate Environmental Conservation Committee, introduced a bill (S.6316) to strengthen the Brownfield Opportunity Area Program.

Brownfields Bill Re-Introduced (Click for more) - 
On January 9, 2012, Senator Grisanti, Chair of the Senate Environmental Conservation Committee, re-introduced his brownfields bill from last year (S.5228-A).
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