UB Law Students Offer Strategies For Spurring "Brownfield" Redevelopment In Erie County

BUFFALO, N.Y. -- Environmentalists, businesses and governments must work together more effectively if "brownfields" -- abandoned, urban industrial sites -- are to be cleaned up and reclaimed, according to a report presented to Erie County officials today (Thursday, May 12) by University at Buffalo law students.

Adjusting liability provisions in state and federal "Superfund" legislation and offering financial incentives to potential developers are two of the key recommendations in the report, which outlines a comprehensive brownfields redevelopment strategy for Erie County.

The students, working in cooperation with Richard M. Tobe, Erie County commissioner of environment and planning, also recommend the formation of a task force composed of community and governmental leaders, academics, members of community groups and environmental activists to directly address the issue of "brownfields redevelopment."

"New York State is behind on this issue; a lot is happening elsewhere in the country," notes law school Dean Barry B. Boyer, a well-known environmental activist.

The goal of the six students in the Environment and Development Seminar, under the direction of Robert S. Berger, UB professor of law, was to try to find ways to encourage reuse of minimally contaminated industrial sites without compromising the fundamental goals of "making polluters pay," protecting health and improving the environment. "We want to call attention to the problem and suggest that, if nothing else, it can't continue to be ignored," Berger says.

Many older cities, particularly in the Great Lakes region, are having problems redeveloping or "recycling" any property that had or has an industrial or commercial use, he says. Potential developers fear the property may have some type of environmental contamination and that they would be held liable for the clean-up.

Under current law, new property owners may be held liable for clean-up costs, even if they have no connection to the original contamination. Municipalities are not foreclosing on properties because of liability concerns. And banks are refusing to lend or invest money in the purchase of such properties because of potential lender liability.

Failure to reuse old industrial sites in urban areas is forcing all development out to the suburban and rural areas, creating intense development pressure and changing the nature of many communities, the report says. The cost of providing the necessary infrastructure to support this new development -- infrastructure already in place in urban areas -- is strapping the municipalities and counties in which they are located.

In addition, the environment is being harmed in two major ways. First, because many former industrial sites are located in low-income and minority communities, failure to clean these sites perpetuates the existence of health hazards in depressed, urban regions. Second, more rural land is being used for industrial purposes than would be necessary if industries were encouraged to recycle urban industrial properties.

The abandonment of the industrial core -- the so-called brownfields -- and the use of open space in suburbs and rural areas -- the greenfields -- is a significant environmental and economic problem in Erie County, the students' report says. The ideal solution would be to take advantage of the existing infrastructure and recycle brownfield sites for new industrial and commercial uses, leaving the greenfields for agricultural, recreational and residential use.

• Support state legislative changes offering appropriate liability releases to prospective purchasers of minimally contaminated brownfield sites. The release plan that would have the most comprehensive effect would be one that would be granted prior to cleanup and would be conditional on an intention to clean and reuse the site. It would be granted only to those having no connection to parties responsible for the contamination at the site, and would be passed along to subsequent owners or operators of the property.

• Support state legislative changes encouraging certainty in New York State cleanup standards.

• Support legislative changes granting liability exemptions for land secured by municipalities through tax foreclosure and possibly eminent domain. While the federal Superfund legislation provides immunity to municipalities that acquire property involuntarily, New York State law includes no release from liability. It only allows municipal owners to apply for financial help in cleaning up hazardous waste. If a municipality is not required to take known contaminated land, it is unlikely to do so because acquisition of such property may subject the municipality to clean-up liability. As a result, the property continues in legal limbo, with little likelihood of it being cleaned up and recycled.

• Support legislative changes sanctioning the transfer of municipal immunity to an "innocent" buyer who has no connection with, or advance knowledge of, contamination of the site.

• Investigate the practicality of lease arrangements with "innocent" developers for municipally owned property.

• Create a revolving loan fund to be used as a catalyst for brownfield redevelopment. Such funds could be designated for specific purposes, such as preliminary environmental assessments or for assistance to small businesses.

• Pursue designation of a local site for inclusion in Gov. Cuomo's pilot program to redevelop abandoned industrial sites. Under the plan, the Urban Development Corp. would extend business expansion loans, infrastructure investment loans and/or grants, and grants to assess the nature and extent of contamination.

• Encourage allocation of economic development funds to support brownfield redevelopment.

Members of the Environment and Development Seminar who prepared the report, all second-year law students at UB, are Patricia C. Campbell, James A. Crolle III, Wendy A. Marsh, Sallie G. Randolph, Julia A. Solo and Hugh Stephens.