Gibbons Law Alert

Gibbons Law Alert

Category: Development/Redevelopment

In a Case of First Impression in the Second Circuit, the District Court Clarifies When the Statute of Limitations Begins to Run on a Natural Resource Damages Claim Under CERLCA

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Posted in Development/Redevelopment

On February 17, 2022

A case that shares the elements of a crime thriller – massive illegal dumping of toxic construction debris in a public park and playground, corrupt public officials, a special grand jury investigation and criminal prosecutions – has broken new ground on when the statute of limitations runs on a natural resource damages claim. Seggos v. Datre, a case relating to the closure of a public park in an environmental justice area due to illegal dumping of hazardous waste, will proceed now that a federal judge has rejected a request brought by 17 law firms to find that it had been filed too late. The complaint in the case, pending in the U.S. District Court the Eastern District of New York, alleged that in 2013 and 2014, tens of thousands of tons of construction and demolition debris and related waste (“C&D”) were dumped in Roberto Clemente Park (“Park”) in the hamlet of Brentwood, New York, an environmental justice community located in the Town of Islip on Long Island. The C&D was brought to the Park from construction sites throughout the New York City metropolitan area. The New York Attorney General, suing on behalf of the New York State Department of Environmental Conservation (NYSDEC) Commissioner and the State of New York (together, the “State”), brought the case to...

David J. Freeman Co-Authors Article for Bloomberg News on the Future of New York’s Brownfield Cleanup Program

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Posted in Development/Redevelopment

On February 11, 2022

David J. Freeman, a Director in the Gibbons P.C. Environmental Group, has co-authored an article with Lawrence P. Schnapf for Bloomberg Law on New York’s Brownfield Cleanup Program (BCP). The two authors, who co-chair the New York State Bar Association’s Brownfields Task Force, are well positioned to offer insights on the future of the program. The tax credit provisions of the BCP, a key feature of the highly successful program, are scheduled to expire at the end of this year. New York Governor Kathy Hochul has supported efforts to expand and reauthorize the tax credit provisions. The article describes the current tax credit provisions and the key features of Governor Hochul’s proposal, which would result in a ten-year extension of the BCP tax credits. The article also describes changes to the BCP program recommended by other interested stakeholders and in bills introduced by the legislature in last year’s session. The article notes that, while a positive step, the Governor’s proposed reforms “fall short of the changes recommended by the New York State Bar Association, community groups, and developers, and in bills introduced in last year’s legislative session.” Noting that developments in the next two months may impact the shape of BCP for the next ten years, the authors recommend that interested stakeholders make their voices...

Jennifer Phillips Smith Named Co-Chair of Gibbons Real Property Group

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Posted in Development/Redevelopment

On December 9, 2021

Gibbons P.C. is pleased to announce that Jennifer Phillips Smith has been named Co-Chair of the firm’s Real Property Group, effective February 1, 2022. She joins Co-Chair Douglas J. Janacek, who has been a leader of the Real Property Group for over a dozen years. Ms. Smith is lead land use attorney on several of New Jersey’s largest, most high-profile development and redevelopment projects, which garner extensive media coverage. Examples include a $2.5 billion redevelopment, which is being called the “largest mixed-use development site in New Jersey’s history,” the transformation of the Asbury Park Waterfront, and the repositioning of a former manufacturing and office site, named “Mixed-Use Deal of the Year” by the leading statewide commercial real estate development association. As Co-Chair of the Real Property Group, she will work with Mr. Janacek in overseeing the work of group attorneys and managing group activities and workload, including fees and billings, matter management, case staffing, associate training and broader professional development, client relations, and business development. In her legal practice, Ms. Smith helps businesses in New Jersey expand and optimize the reach of their markets and operations through the development and redevelopment of real property for their facilities, directing project and case strategies, guiding teams, and serving as primary Gibbons contact broadly responsible for these client...

Gibbons Environmental Director David J. Freeman: “A ‘Bridge Builder’ Whose Vision Came to Fruition,” Featured in New York City Brownfield Partnership Interview

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Posted in Development/Redevelopment

On July 26, 2021

In June 2021, Gibbons Director David J. Freeman received the Distinguished Service Award from the New York City Brownfield Partnership, an organization he co-founded. Further honoring David for his extensive contributions to environmental law and the development of brownfields policy, the Partnership published an engaging and wide-ranging interview of David. In the interview, David describes how the Partnership’s goal of creating a bridge between the private sector and the Mayor’s Office of Environmental Remediation, which David developed with his co-founder, Dr. Daniel Walsh, grew over 15 years to include pro bono work, internships, and scholarships. The Partnership’s contributions to shaping brownfields law helped vitalize the Brownfield Opportunity Area initiative with its focus on neighborhood revitalization and community outreach. With the current focus at the federal and state levels on environmental justice for disadvantaged communities, the Brownfield Opportunity Area initiative has taken on an even more critical role.

NJDEP Unveils Resiliency Planning Toolkit

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Posted in Development/Redevelopment / Environmental Issues

On June 29, 2021

On February 2, 2021, Governor Phil Murphy signed P.L. 2021 c. 6, which requires municipalities to incorporate assessments of climate change hazards into Master Plan Land Use Elements adopted after its enactment. No doubt many municipal officials, faced with tight budgets and heavy obligations, greeted this news with trepidation. However, the New Jersey Department of Environmental Protection (NJDEP) has come to the rescue with an extensive and well-designed online toolkit. The launch of the toolkit was announced by NJDEP Commissioner Shawn LaTourette on June 10 at the New Jersey Planning and Redevelopment Conference. The toolkit provides detailed guidance to assist communities in developing and implementing public processes to assess local vulnerabilities and create strategies to address them. It provides step-by-step procedures for creating teams to engage local stakeholders in defining their vision and developing plans to gather data, assess vulnerabilities, and develop strategies. Each section of the toolkit provides useful training modules, prototype documents and templates, and links to critical informational resources. The final section assists in tracking progress and contains links to federal and state sites providing information on funding and financing options. The toolkit is comprehensive, flexible, and user-friendly. It will be invaluable to municipalities in meeting their statutory obligations. It also provides a valuable model for other states, regional planning agencies, and...

Gibbons Director David J. Freeman Receives Distinguished Service Award From New York City Brownfield Partnership

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Posted in Development/Redevelopment

On June 8, 2021

David J. Freeman, a Director in the Environmental Group of Gibbons P.C., has been honored by the New York City Brownfield Partnership (NYCBP) as the 2021 recipient of the organization’s Distinguished Service Award. The Award promotes excellence in brownfield redevelopment each year by honoring an individual who has made a significant impact on brownfield redevelopment in New York City.

New York Appellate Court Allows Top Floors of Upper West Side Condo Building to Remain

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Posted in Development/Redevelopment

On April 7, 2021

The New York City development community was alarmed by a trial court decision in February of last year that would have required removal of the top floors of a 55-story condominium building under construction at 200 Amsterdam Avenue on the Upper West Side of Manhattan. On appeal, the Appellate Division, First Department, issued a decision in early March reversing the trial court, which means that, absent any further appeal, the building can be completed and the condominium units offered for sale. The case, In the Matter of Committee for Environmentally Sound Development v. Amsterdam Avenue Redevelopment Associates LLC, 2021 NY Slip Op. 01228 (“Amsterdam Avenue”), serves as a high-profile, high-stakes reminder of the importance of two well-settled principles of New York zoning law: Administrative agencies like planning and zoning boards, which are charged with administering technical regulations with which they have substantial experience and technical expertise, are entitled to substantial deference and cannot disregard past precedent without good reason, such as differences in facts or changed circumstances; A party seeking to overturn a permit or approval must avail itself of all opportunities to seek a stay that halts construction or risk having its case dismissed as moot, and a developer seeking to defeat an appeal can do so by taking the risk of diligently proceeding...

NJ’s New Economic Incentive Legislation Includes Supplement to Brownfields Program

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Posted in Development/Redevelopment

On January 14, 2021

The New Jersey Economic Recovery Act of 2020 (NJERA), recently signed into law by Governor Murphy, includes an important new tax incentive for Brownfields called the “Brownfields Redevelopment Incentive Program Act” (BRIPA),  included as Sections 9 through 19 in the act. BRIPA supplements the existing “Brownfield and Contaminated Site Remediation Act” (BCSRA), which provides funds for reimbursement of varying components of remediation costs at Brownfield sites based on certain eligibility criteria, including the Hazardous Discharge Site Remediation Fund and the Brownfield Site Reimbursement Fund. Under BRIPA, as under BCSRA, a “Brownfield site” is any commercial or industrial site that is “vacant or underutilized and on which there has been, or there is suspected to have been, a discharge of a contaminant.” BRIPA further expands the definition of Brownfield sites to include sites where there is or suspected to be contaminated building materials. BRIPA takes an approach similar to that of the New York Brownfields Cleanup Program by awarding tax credits of up to the lesser of 40 percent of remediation costs or $4 million under redevelopment agreements entered into by the state and a developer. There is a cumulative cap of $50 million that can be awarded annually under BRIPA. Projects that are eligible for tax credits under BRIPA are those that are located at...

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