Fixing a flawed fixup law
Only 25 cleanups have been done under state's 2003 Brownfields Law; an amendment is planned

BY DANIEL WAGNER
First published in Newsday, May 23, 2007

When Babylon Town Supervisor Steve Bellone was elected in 2002, he made the revitalization of downtown Wyandanch a top priority. The community suffered from poverty and poor infrastructure, and was peppered with more than 100 underdeveloped, contaminated sites - known in development circles as brownfields.

Having seen a 2000 report from the Suffolk County Planning Commission that identified Wyandanch as "the most economically distressed community on Long Island," Bellone said, "we thought it was very important to take a comprehensive approach to revitalization," including transit-oriented development, beautification initiatives and brownfield redevelopment.

One key to the plan was state funding for studies of infrastructure and environmental needs, money to be awarded under New York's landmark Brownfields Law, passed in 2003. The law provides for broadly applied grants in designated Brownfields Opportunities Areas, like Wyandanch, as well as tax credits and liability protection for developers of eligible contaminated sites.

But even after Wyandanch was awarded $258,000 under the program - more than any other Long Island community - Bellone said the money didn't show up for 2 1/2 years. The good news came in 2004, yet his administration had to wait until the end of 2006 as the money wended its way through a bureaucratic process that critics call onerous and unnecessarily complex.

"It's frustrating," Bellone said. "The community has a hard time understanding why it takes so long to get things done, and here's an example of something that took 2 1/2 years just for study money."

Bellone's experience is not unusual: Environmentalists and developers alike have long criticized the Brownfields Law - under which 25 cleanups have been completed - and its sponsor, Sen. Carl Marcellino (R-Syosset), has started drafting an amendment to address complaints.

In a study released yesterday, the Manhattan-based nonprofit New Partners for Community Revitalization Inc., which was involved in drafting the original legislation, charged that the brownfields program "is not working effectively ... especially in poor, urban communities."

"Three years after its implementation ... it is clear that the law has flaws and will not meet its promise without repair," the study said.

Although broadly positive about the law's structure and intentions, the study charges that the brownfields tax credits "have proven to be ineffective to spur redevelopment in communities hardest hit by decay and disinvestment" because the credits make redevelopment in economically strong communities more profitable for developers, who can charge more in such prosperous areas.

The study also says that a series of regulations promulgated by the state Department of Environmental Conservation have often rendered impaired sites in urban environments less likely to be eligible for credits if those sites' contaminants originated elsewhere and were dumped as fill.

Overhauling the Brownfields Law is especially important for Long Island because of the region's distressed downtowns, the small amount of never-developed land, and the Island's more than 6,800 "known sites of environmental contamination," said Sarah Lansdale, executive director of Bethpage-based Sustainable Long Island, which advocates for environmentally and economically sustainable development and surveys contaminated sites.

Like Lansdale, Long Island attorney Robert Benrubi - who often represents developers trying to clean and build on contaminated sites - said the law has had some unintended consequences.

"Some of the projects have been extremely valuable to developers, and I think we've seen a backlash by the state against that windfall," said Benrubi, a partner at the Garden City firm Phillips Nizer Llp. Once the state started to recognize the potential cost of these tax credits, he said, DEC officials "increased scrutiny" of potential projects, requiring a higher level of contamination for a site to eligible. In some cases, he said, the DEC was "much too conservative."

Still, Benrubi said, there is room for compromise: The tax credits could be capped, he said, and eligibility requirements could be refocused to promote projects such as affordable housing that can spur economic growth.

Marcellino, who sponsored the 2003 law, said he gives New York's brownfields program "a mixed review. They're [program administrators] looking to do the right thing, but some of the language has held them back," as have fears that the tax credits would be too costly.

Within "a week or two," he said, he will have finished drafting an amendment that will address some of the issues raised in yesterday's report. He said some of the issues had been raised even before the law was passed but that it was necessary to "field test" a program before tweaking it.

The new language, which will streamline oversight to prevent delays and adjust definitions of contaminated fill to "bring more projects into the program," will likely meet with approval from other lawmakers, Marcellino said.

"Everyone wants to move the program," he said.

The Wyandanch studies are well under way, Bellone said, but if the money had come sooner, "we would be farther ahead - maybe even much farther ahead than we are."