COMG611-61

Topics for Exam # 2

Topics

CEQR/ULURP

1) Differences: CEQR vs. SEQRA – e.g. Special NYC focus (building shadows, parking, etc.)

• CEQR procedures apply to proposed discretionary actions taking place within the boundaries of NYC

• CEQR adapts and refines the SEQRA rules to take into account the special cir-cumstances of New York City.

• CEQR: give guidance on selection of a lead agency, adds scoping requirements, promotes use of NYC’s CEQR Technical Manual in conducting environmental re-views

2) Discretionary actions vs “as of right” (e.g. need for a zoning variance by developer would involve a discretionary action vs granting of permit “as of right” i.e. developer just pays app. fee, etc = no discretionary action = not subject to SEQRA/CEQR)

• Discretionary action (yes/no): need for a zoning variance by developer• “as of right”: granting permit, developer pays application fee.• CEQR is process by which agencies of the City of New York review proposed

discretionary actions to identify the effects those actions may have on the environ-ment

• No discretionary action = not subject to SEQRA/CEQR

3) What actions are covered by CEQR?

• Discretionary actions:-directly undertaken by a NYC agency-funded by a NYC agency-approved by a NYC agency

• Initiated by:-NYC-private applicant

• Just as for SEQRA, “Ministerial actions” (e.g. granting of a building permit w/o a variance) are not CEQR actions

• Type II SEQRA actions not subject to CEQR (e.g. maintenance or repair involv-ing no substantial changes in an existing structure)

4) Know some of the 20 impact areas to be addressed by a CEQR impact statement – know some general analysis details on 1 or 2 impact areas (see the CEQR Technical Guidance Manual)

Chapter 7: Open Space

Under CEQR, an open space analysis is conducted to determine whether a proposed project would have a direct impact resulting from the elimination or alteration of open space or an indirect impact resulting from over taxation of an available open space. Open space is either publicly or privately owned land that is publicly accessible and available for leisure, play, or sport, or is set aside for the protection or enhancement of the natural environment. Furthermore, open space includes categories such as active and passive open space. Active open space is used for sports, exercise, or active play classified as “active open space”, while passive open spaces are used for relaxation, such as sitting or strolling. Ultimately, an open space analysis focuses on officially designated existing or planned public open space.

A preliminary assessment is helpful when the open space assessment can be matched to a particular user group. The following technique examines the change in total population relative to total open space in the study area to determine whether the elimination of open space or increase in user population would significantly reduce the amount of available open space for an area’s population. First, the total population in the study area at the time of the most recent decennial census is calculated with an adjustment based on subsequent population estimates. The total open space in the study area is then calculated and an open space ration (R) in the study area is calculated using the following equation:

Chapter 8: Shadows

A shadow assessment is used to assess whether new structures may cast shadow on sunlight sensitive publicly accessible resources or other resources of concern such as natural resources, and to assess the significance of their impact. However, a majority of the projects that are subject to CEQR usually do not require a detailed shadow analysis. A shadow assessment begins with a preliminary screening assessment in order to ascertain whether said project’s shadow may happen to reach any aforementioned sunlight-sensitive resources throughout a given year. Like with most preliminary assessments if it does not eliminate the possibility, then a detailed shadow analysis is required to determine the scope and duration of the shadow resulting from the project.

Chapter 15: Energy

CEQR requires that an EIS include discussion of the effects of a proposed work on the conservation and/or use of energy (if significant). Projects are encouraged to examine benefits of energy efficiency measures and feasibility of co, tri, and on-site renewable generation. Analyses are focused on a projects consumption of energy and potential effects on the transmission of energy that may result – includes electricity, fossil fuels, nuclear power, hydroelectricity, and other miscellaneous fuels.

Preliminary analysis occurs by observing operational energy, or the amount of energy consumed annually after the project is operational (heating, cooling, lighting, pumps, fans, domestic hot water, plug loads, and elevators). Energy in this analysis is measured in British Thermal Units (BTU) through utilization of an energy conversion calculator (via the U.S. Energy Information Administration).

Energy consumption can be modeled through programs such as Trace, HAP, DOE-2, and eQuest. Projects subject through the Greenhouse Gas assessment should estimate energy consumption through energy modeling, usually undertaken by a project’s architect/engineer for comparable buildings. Table 15-1 in the CEQR manual can be used to estimate average annual whole-building energy use in New York City, categorizing facilities by building type (commercial, industrial, institutional, and large & small residences)

Chapter 18: Greenhouse Gas Emissions and Climate Change

New York City’s sustainability program, PlaNYC, seeks to reduce greenhouse gas (GHG) emissions (30% below 2005 levels by 2030) and increasing the City’s resilience to climate change effects. At the City’s request, the Urban Green Council convened a Green Codes Task Force to strengthen energy and building codes and address the impact of climate change. Other initiatives include The Greener, Greater Building Plan – targeting energy efficiency in large existing buildings – and Local Law 86 (2005), requiring new projects to be built in accordance with the standards of the Leadership in Energy and Environmental Design (LEED) green building rating systems. The New York City Panel on Climate Change (NPCC) and the Climate Change Adaptation Task Force were utilized by the City in order to develop infrastructure against adverse environmental effects from greenhouse gas emission.

Analysis of GHG emissions and effects on the environment invariably involve observation of the sources of greenhouse gas emission: operations emission (direct, indirect, and indirect emissions from solid waste generation), mobile source emissions (direct and indirect), and construction emissions (construction-generated and emissions resulting from the manufacture or transport of construction materials).

5) The CEQR process (environmental assessment & EAS form, Notice of Determination, public input, DEIS, FEIS, Statement of Findings)

The CEQR process involves:

• Lead agency:-undertakes, funds, or approves a discretionary action-principally responsible for the environmental review

• Involved agency:-can approve, fund, or undertake an action

• Interested agency:-lacks the jurisdiction to approve, fund, or undertake an action,-requests or is requested to participate in the environmental review because of special concerns or expertise

Environmental Assessment:

• An environmental assessment statement is a form used to describe the proposed action and its location-EAS short form -EAS long form -Jamaica Bay Watershed Protection Plan form

• A proposed project’s Environmental Assessment Statement (see e.g. EAS for NYC water tunnel) is the 1st level of analysis of the environmental review impact areas to determine potential effects on the environment.

• Used by a lead agency to guide its Determination of Significance (neg dec, pos dec or conditioned neg dec just like SEQRA)

Determination of Significance:

• Lead agency decides if there will or will not be an effect on the environment -Negative declaration if lead agency determines that there will not be a significant impact on the environment.-A Notice of Determination (Positive declaration) is prepared when there is a po-tential significant impact on the environment - A positive declaration leads to the preparation of a Draft Environmental Impact Statement -For a private applicant, a conditional negative declaration is prepared when the applicant agrees to mitigate impacts as part of the project (similar to SEQRA)-For some large projects, the lead agency may issue a positive declaration without completing an EAS

The CEQR EIS:

• Provides a complete analysis of all appropriate impact areas (for all relevant chapters from the CEQR Technical Manual)

• Provides a means for agencies, project sponsors, and the public to consider an action's significant adverse environmental impacts, alternatives, and mitigations.

• Facilitates the weighing of social, economic, and environmental factors early in the planning and decision-making process

Statement of Findings:

• A written statement prepared by each involved agency after a Final EIS has been filed-considers the relevant environmental impacts presented in an EIS-weighs and balances the impacts with social, economic, and other essential con-siderations-provides a rationale for the agency's decision-certifies CEQR requirements have been met

CEQR and Public Input:

• Following the issuance of a notice of determination (positive declaration), the lead agency shall coordinate the scoping process

• The process shall ensure that all interested and involved agencies, the applicant, the NYC Office of Environmental Coordination (OEC), community and borough boards, borough presidents and the public are able to participate.

• The scoping meeting shall include an opportunity for the public to observe discus-sion among interested and involved agencies, agencies entitled to send representa-tives, the applicant and the OEC. Reasonable time shall be provided for the public to comment with respect to the identification of issues to be addressed in the draft environmental impact statement. The OEC shall assist the lead agency in ensuring that the public scoping meeting is conducted in an effective manner

6) CEQR challenge analysis (exactly the same as NEPA/SEQRA i.e. was a hard look taken? Were there any arbitrary/capricious actions?)

• Essentially the same as NEPA & SEQRA• Was a “hard look” taken?• Did the lead agency “thoroughly analyze the identified relevant areas of environ-

mental concern to determine if the action may have a significant adverse impact on the environment; and set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any supporting documentation”?

7) What is ULURP and who is involved in ULURP review (DCP, relevant Community Boards, Borough President, City Planning, City Council, Mayor's office & Mayor's veto power) – time periods for review by each

• Uniform Land Use Review Procedure (ULURP)• Response to: increasing involvement of the city's Community Boards (city di-

vided into 59 community districts, each represented by a Community Board) in the development of the city and a substantial increase in community participation in many aspects of government.

ULURP Actions (property related):

• Changes to the City Map • Mapping of subdivisions or platting of land into streets, avenues or Public Places

(rarely used)• Designation or change of zoning districts • Special Permits within the Zoning Resolution requiring approval of the City Plan-

ning Commission• Site selection for capital projects• Revocable consents (e.g. bridges over streets, sidewalk cafes) requests for propos-

als and other solicitations or franchises (e.g. private bus stop shelter), and major concessions (e.g. >2,500 seat stadium)

• Improvements in real property the costs of which are payable other than by the City (rarely used)

• Housing and urban renewal plans and project pursuant to city, state and federal laws

• Sanitary or waterfront landfills• Disposition of NYC owned property• Acquisition of real property by NYC

The ULURP Process:

• Filing of Application (several zip files)• Certification by Dept. of City Planning (DCP)• Certified apps sent within 9 days to affected Community Board, Borough Presi-

dent & City Council)• Community Board Review (60 days)• Borough President Review (30 days)• City Planning Commission Review (60 days)• City Council Review (10 days) – mandatory for zoning map changes; zoning text

changes; housing and urban renewal plans; disposition of residential buildings; disapprovals by CB and BP

• Mayoral Review - may veto a council action within 5 days of the vote; Council, by a 2/3 majority, can override a Mayor veto of its decision within 10 days of the veto.

ULURP Fees:

• Will add costs to development of project• Special permits (total amount of floor area)

-E.g. 70,000 to 99,999 square feet = $6,125• Zoning map amendments (area of all zoning lots)

-E.g. over 500,00 square feet = $30,620• Other applications

-E.g. other change in The City Street Map = $5,445• Franchises and revocable consents

-E.g. Sidewalk cafes: enclosed - $55 per seat/minimum of $1,360

Wetlands

1) How to define a wetland

Wetlands are areas where land and water meet Wetlands are areas where land and water meet Wetlands are transitional areas between aquatic and upland plant and animal comWetlands are transitional areas between aquatic and upland plant and animal com--

munitiesmunities Wetlands also occur where groundwater is near or at the surface, saturating the Wetlands also occur where groundwater is near or at the surface, saturating the

soilsoil

2) Characteristics of a wetland (soil, vegetation, hydrology)

Wetlands are areas characterized by:Wetlands are areas characterized by:

growth of growth of wetland vegetationwetland vegetation (bulrush, cattails, rushes, sedges, willows, pickle (bulrush, cattails, rushes, sedges, willows, pickle--weed, andiodine bush)weed, andiodine bush)

where the where the soil is saturatedsoil is saturated during a portion of the growing season or the surface is during a portion of the growing season or the surface is flooded during some part of most years. flooded during some part of most years.

Wetlands generally include swamps, marshes, bogs, and similar areas. [U.S. Wetlands generally include swamps, marshes, bogs, and similar areas. [U.S. Army Corps of Engineers - see also Army Corps of Engineers - see also Recognizing Wetlands Recognizing Wetlands ; ; Wetlands DelinWetlands Delin--eation Manualeation Manual; ; USFWS/USACE List of Wetlands Vascular Plant SpeciesUSFWS/USACE List of Wetlands Vascular Plant Species ]]

3) Wetlands delineation (what is delineation?)

• Engineers note: The Corps of Engineers Engineers note: The Corps of Engineers Wetlands Delineation ManualWetlands Delineation Manual is the tech is the tech--nical guidelines “bible” for wetlandsnical guidelines “bible” for wetlandsA determination that a wetland exists and a depiction of the extent and boundaries of the wetlandsSome state/local environmental agencies will undertake a wetlands delineation

Diagnostic Environmental Characteristics 3 Key Indicators Diagnostic Environmental Characteristics 3 Key Indicators (a minimum of one (a minimum of one indicator is required to delineate a wetland):indicator is required to delineate a wetland):

Vegetation: macrophytes that are typically adapted to areas having hydrologic and soil conditions

Soil: classified as hydric, or it possesses characteristics that are associated with reducing soil (e.g. ferric to ferrous) conditions

Hydrology: area is inundated either permanently or periodically at mean water depths <6.6 ft, or the soil is saturated to the surface at some time during the growing season of the prevalent vegetation

4) Wetland mapping

• The Freshwater Wetlands Act (Article 24 of the ECL) The Freshwater Wetlands Act (Article 24 of the ECL) requires DEC to map all requires DEC to map all those freshwater wetlands that are subject to jurisdiction of the law.those freshwater wetlands that are subject to jurisdiction of the law.

•• The maps must show "the approximate location of the actual wetland boundary.“The maps must show "the approximate location of the actual wetland boundary.“•• DEC will refine that approximate boundary by doing a field delineation for DEC will refine that approximate boundary by doing a field delineation for

landowners when they need more precise information, such as when they are landowners when they need more precise information, such as when they are planning to conduct work near a wetlands area. planning to conduct work near a wetlands area.

•• Original wetland maps were filed in most counties between 1984 and 1996 and Original wetland maps were filed in most counties between 1984 and 1996 and some have since been corrected or amendedsome have since been corrected or amended

• Digital wetlands boundary data are available through Digital wetlands boundary data are available through CUGIRCUGIR• Wetlands Mapper from Wetlands Mapper from USFWSUSFWS• NYSDECNYSDEC add “State-Regulated Freshwater Wetlands “ layer to the GIS add “State-Regulated Freshwater Wetlands “ layer to the GIS EnvironEnviron--

mental Resource Mapper mental Resource Mapper •• One of the 1st steps: Check the wetlands maps (then look for amendments)One of the 1st steps: Check the wetlands maps (then look for amendments)

5) Freshwater vs marine wetlands

6) Regulation thresholds (e.g. 12.4 acres for NY State)

7) Joint regulation – e.g. NYSDEC & US ACE

8) Types of wetlands (generally)

9) Buffers (100 ft vs other local restrictions e.g 150 ft. in Lewisboro case study)

10) Impact of more restrictive buffers (e.g. denial of development)

11) Wetlands mitigation (buffers, constructed wetlands, swales, transfer of development rights for properties with wetlands, etc.)

12) Should “isolated wetlands” be regulated? Are they “navigable waters” / “waters of the U.S.” ? Supreme Court split – is a nexus (link) between an isolated wetland and a clearly “navigable waterway” required? Rapanos decision was 4:4:1 – now, we need to look for a “nexus” between the alleged wetland and a “navigable water”; guidance is still not clear which led to EPA proposing a rule to define “waters of the United States”

Zoning & Land Use

1) What is zoning?

• Zoning is the practice of designating permitted uses of land based on delineated zones that are mapped.

• Zoning separates one set of land uses from another. • The separation may be based on:

Use - regulating the uses to which land may be put (commercial, residential, industrial, mixed)Other – health/safety; building height; lot coverage, and similar characteristics,• Zoning is the basic tool of urban planning.

2) Authorized by a state’s “police power”

•• Generally, the state’s “police power” under their state constitution may be used to Generally, the state’s “police power” under their state constitution may be used to promote the health, morals, safety, or general welfare of its populacepromote the health, morals, safety, or general welfare of its populace

•• Zoning upheld by Supreme Court as a valid exercise of police power Zoning upheld by Supreme Court as a valid exercise of police power [Village of Eu[Village of Eu--clid v Ambler Realty Cp. 272 U.S. 365]- hence: Euclidean Zoning”clid v Ambler Realty Cp. 272 U.S. 365]- hence: Euclidean Zoning”

•• But land use regulation must be within the scope of the state’s police powers (balBut land use regulation must be within the scope of the state’s police powers (bal--ance public benefit vs. private loss)ance public benefit vs. private loss)

3) Why do we have zoning?

•• Establish basic parameters for use & development of landEstablish basic parameters for use & development of land•• Serve as a means for preservationServe as a means for preservation•• Promote desired land usesPromote desired land uses

4) Simple (older communities e.g. Seneca Falls, NY) vs more complex modern communities e.g. Carlsbad, CA)

5) The tension between: legitimate exercises of a state’s “police power” (protect health, safety, welfare) versus unconstitutional takings

•• Generally, the state’s “police power” under their state constitution may be used to Generally, the state’s “police power” under their state constitution may be used to promote the health, morals, safety, or general welfare of its populacepromote the health, morals, safety, or general welfare of its populace

•• Zoning upheld by Supreme Court as a valid exercise of police power Zoning upheld by Supreme Court as a valid exercise of police power [Village of Eu[Village of Eu--clid v Ambler Realty Cp. 272 U.S. 365]- hence: Euclidean Zoning”clid v Ambler Realty Cp. 272 U.S. 365]- hence: Euclidean Zoning”

•• But land use regulation must be within the scope of the state’s police powers (balBut land use regulation must be within the scope of the state’s police powers (bal--ance public benefit vs. private loss)ance public benefit vs. private loss)

•• 5th Amendment of U.S. Constitution5th Amendment of U.S. Constitution•• Applies to states via 14th AmendmentApplies to states via 14th Amendment•• “nor shall private property be taken for public use, without just compensation” “nor shall private property be taken for public use, without just compensation” [the [the

Takings Clause]Takings Clause]•• Most state constitutions include the same or similar provisions (Art. I Sect. 7 in NY)Most state constitutions include the same or similar provisions (Art. I Sect. 7 in NY)•• A zoning/land use regulation may constitute a “taking” without just compensationA zoning/land use regulation may constitute a “taking” without just compensation

6) Can a zoning regulation go too far and become a taking?

•• A zoning/land use regulation may constitute a “taking” without just compensationA zoning/land use regulation may constitute a “taking” without just compensation

7) Reasonable Euclidean zoning vs. unreasonable 5 th Amendment takings

• Euclidean zoning requires just compensation•• 5th Amendment “takings clause”5th Amendment “takings clause”•• “nor shall private property be taken for public use, without just compensation” “nor shall private property be taken for public use, without just compensation” •• The Supreme Court applied the Takings Clause of the 5th Amendment to the States The Supreme Court applied the Takings Clause of the 5th Amendment to the States

through the 14th Amendment Due Process Clause inthrough the 14th Amendment Due Process Clause in  Chicago Burlington and QuincyChicago Burlington and Quincy R.R. v. City of ChicagoR.R. v. City of Chicago, 166 U.S. 226 (1897)., 166 U.S. 226 (1897).

It’s a taking if:It’s a taking if:

• the regulation or restriction subjects the property to a permanent physical occupation• it requires or allows public use of private property (even some easements)• it results in no economically viable use of the property• The regulation or restriction does not advance a legitimate state interest (“nexus test”

i.e. no nexus or link = a taking) i.e. is it Reasonable?

8) Some of the tests for whether zoning is a taking (e.g. nexus, rough proportionality, denial of development)

•• No Nexus: no reasonable link found no reasonable link found•• No Rough Proportionality: : conditions on development must be roughly propor: conditions on development must be roughly propor--

tional to anticipated impacts (generally, can’t require developer to undertake mitigational to anticipated impacts (generally, can’t require developer to undertake mitiga--tion greater than the impact of their projects)tion greater than the impact of their projects)

•• Denial of Development: when the nexus & proportionality goes way too farwhen the nexus & proportionality goes way too far• Exaction: a govt. requirement that a developer provide specified land, improve-

ments, payments, or other public benefits to offset impacts of a project that does not meet nexus or rough proportionality test

9) Can a “private” taking (condemnation via eminent domain power with the property then developed by a private party) be a Constitutional “public” taking (e.g. Kelo case; Atlantic Yards, Columbia U.)

Environmental protection via land use restrictions (E.g. EPODs and other zoning “add-ins”)

1) overlay zones (e.g. EPODs – environmental protection districts overlaid over Euclidean zoning)

Leave existing zoning in place and overlay new requirementsLeave existing zoning in place and overlay new requirements::

•• Mapped areas, superimposed on existing “Euclidean” zoning districts, in which addiMapped areas, superimposed on existing “Euclidean” zoning districts, in which addi--tional or different regulations are imposedtional or different regulations are imposed

•• Usually addresses environmental issues (e.g. water supply protection) without Usually addresses environmental issues (e.g. water supply protection) without changing the underlying density or use requirements of the Euclidean zonechanging the underlying density or use requirements of the Euclidean zone

•• Example: Example: NYC Special Natural Area District to preserve vegetation and natural terNYC Special Natural Area District to preserve vegetation and natural ter--rain in Staten Island & The Bronx (NYC Zoning Resolution §105-00); NJ Pinelands rain in Staten Island & The Bronx (NYC Zoning Resolution §105-00); NJ Pinelands Protection Act to preserve 1 million acres of pine forests, aquifers, & cranberry bogsProtection Act to preserve 1 million acres of pine forests, aquifers, & cranberry bogs

•• An Environmental Protection Overlay District (An Environmental Protection Overlay District (EPODEPOD) is an example of overlay ) is an example of overlay zoningzoning

2) transfer of development rights (TDR)

A value is placed on the owner’s right to develop their propertyA value is placed on the owner’s right to develop their property

•• Some or all of an owner’s development rights are transferred to a “receiving site” Some or all of an owner’s development rights are transferred to a “receiving site” where development is increasedwhere development is increased

•• Owner loses some development rights but a benefit is realized elsewhereOwner loses some development rights but a benefit is realized elsewhere•• Some states even set up TDR banks or purchase TDRs themselvesSome states even set up TDR banks or purchase TDRs themselves

3) cluster zoning

Re-distribute the development of a zoned parcel without increasing its total develRe-distribute the development of a zoned parcel without increasing its total devel--oped densityoped density

•• Zoning typically uses uniform lot sizes to control residential development (e.g. R-10 Zoning typically uses uniform lot sizes to control residential development (e.g. R-10 = Residential @ 10,000 sq ft or ~1/4 acre – 100’x100’ lots; R-40 = ~ 1 acre zoning)= Residential @ 10,000 sq ft or ~1/4 acre – 100’x100’ lots; R-40 = ~ 1 acre zoning)

•• Under cluster zoning, residential units are clustered in a smaller area and open spaUnder cluster zoning, residential units are clustered in a smaller area and open spa--ces maintained on un-subdivided portions of the parcelces maintained on un-subdivided portions of the parcel

•• Overall density must generally remain the same (e.g. 10 acres of R-10 could support Overall density must generally remain the same (e.g. 10 acres of R-10 could support 40 units; cluster no more than 40 on x acres and keep 10-x as open space)40 units; cluster no more than 40 on x acres and keep 10-x as open space)

•• Could also potentially help developer with steep slope, rocky outcropping or other Could also potentially help developer with steep slope, rocky outcropping or other site issues and reduce infrastructure costs (roads, utilities, etc) while preserving natusite issues and reduce infrastructure costs (roads, utilities, etc) while preserving natu--ral resourcesral resources

4) planned unit developments (PUDs)

Used to plan a community on a case by case basisUsed to plan a community on a case by case basis

•• Type, density and placement of land uses and buildings, instead of being detailed Type, density and placement of land uses and buildings, instead of being detailed and confined to specified districts by local legislation and confined to specified districts by local legislation

•• is determined by contract, or "deal," for each development between the developer is determined by contract, or "deal," for each development between the developer and the municipal administrative authorityand the municipal administrative authority

•• Focus is on regulation of density and permitted mixture of uses within the same Focus is on regulation of density and permitted mixture of uses within the same area, including various kinds of living accommodations with or without commerarea, including various kinds of living accommodations with or without commer--cial and industrial enterprises. cial and industrial enterprises.

•• The idea may be basically thought of as the creation of "new towns" in virgin terThe idea may be basically thought of as the creation of "new towns" in virgin ter--ritory, full-blown or in miniature, (as in Mount Laurel, N.J.) or residential develritory, full-blown or in miniature, (as in Mount Laurel, N.J.) or residential devel--opments of various sizes having some variety of housing and perhaps some retail opments of various sizes having some variety of housing and perhaps some retail establishments to serve the inhabitants.establishments to serve the inhabitants.

5) open space dedication

•• Similar to requiring streets, sidewalks, or sewer lines, or payments towards Similar to requiring streets, sidewalks, or sewer lines, or payments towards schools, treatment plants, or low income units, this schools, treatment plants, or low income units, this requiresrequires dedication of some dedication of some portion of the development to open space or the payment of a feeportion of the development to open space or the payment of a fee for the munici for the munici--pality pality to acquire open spaceto acquire open space (fees more difficult to uphold unless they go to a ded (fees more difficult to uphold unless they go to a ded--icated fund with a plan for its expenditure)icated fund with a plan for its expenditure)

6) conservation easements

Through voluntary agreement rather than eminent domain condemnationThrough voluntary agreement rather than eminent domain condemnation

•• Types:Types:Fee simple (buy the property outright)Fee simple (buy the property outright)Fee subject to life estate (owner remains until death)Fee subject to life estate (owner remains until death)Sale & leaseback (lease the purchased land back to original owner who maintains it)Sale & leaseback (lease the purchased land back to original owner who maintains it)EasementEasement

•• Conservation easementConservation easement Owner retains ownership subject to restrictions that protect the public’s interests (e.g. Owner retains ownership subject to restrictions that protect the public’s interests (e.g. NYS Watershed Conservation Easements)NYS Watershed Conservation Easements)

• Perpetual enforceability • Tax incentives

Gifts of partial interests in land may qualify as a charitable contribution

7) land trusts

Private land preservation generally by not-for-profit organizationsPrivate land preservation generally by not-for-profit organizations

•• Sometimes the organization will work with a developer to secure project approvalSometimes the organization will work with a developer to secure project approval•• Potential liability issues for the land trust organization (personal injury; hazardousPotential liability issues for the land trust organization (personal injury; hazardous

waste, etc.)waste, etc.)

8) environmental accords (e.g. MBIA case study)

•• Agreements reached with the owner and/or developer that addresses any land deAgreements reached with the owner and/or developer that addresses any land de--velopment issues that were raisedvelopment issues that were raised

•• Can transform opposition by environmental groups or “NIMBYs” into environCan transform opposition by environmental groups or “NIMBYs” into environ--mental advocates who will support the approvals needed for the project. mental advocates who will support the approvals needed for the project.

•• Removes the threat of a litigation challenge to the proposal ultimately saving timeRemoves the threat of a litigation challenge to the proposal ultimately saving time and moneyand money

• MBIA proposed expanding its corporate headquarters in the town of North Castle, in the immediate vicinity of the Kensico Reservoir

• Environmental groups feared that construction and new paved surfaces would destroy critical watershed greenery and funnel additional pollution and stormwater runoff into the nearby reservoir.

• An accord was reached that included significant modifications to MBIA’s originally proposed project – modifications that both sides agree are designed to “raise commercial development standards” for building in environmentally sensitive watershed areas.

• MBIA proposed expanding its corporate headquarters in the town of North Castle, in the immediate vicinity of the Kensico Reservoir

• Environmental groups feared that construction and new paved surfaces would destroy critical watershed greenery and funnel additional pollution and stormwater runoff into the nearby reservoir.

• An accord was reached that included significant modifications to MBIA’s originally proposed project – modifications that both sides agree are designed to “raise commercial development standards” for building in environmentally sensitive watershed areas.

9) Can zoning and EPODs be used to discourage affordable housing (see below)

10) Restrictive covenants – what are they? Can they be imposed on a landowner?

Steep Slopes EPODs/Zoning

1) Why care about steep slope development?

• Building on steep slopes disturbs fragile land • May result in increased erosion of the hillsides• Potential increased sediment loading into waterways (e.g. TMDL requirement for

non-point source runoff arose, in part, from concerns over-logging and impact of TSS on steelhead trout)

2) How addressed (ordinances, overlay zones, design standards)

• Communities can:enact ordinances (e.g. Chapter 259 of Town of Cortlandt Zoning Law) adopt overlay zones (E.g. an EPOD)create design standards to address land use on steep slopes.

• Such controls generally prohibit, or carefully monitor and control, construction on steep slopes (typically defined as anywhere between ~15 - 25%)

3) How steep is steep? (e.g. usually >15%)

• Steep Slope: Any geographical area proposed for disturbance, whether on a single lot or not, having a topographical gradient of 15 % or greater (ratio of vertical distance to horizontal distance), with a minimum horizontal dimension of ten feet, and a minimum area as defined below, and whether man- made or natural, and whether created by a retaining structure or not. Steep slopes are further catego-rized as:

Moderately steep slope: A slope equal to or greater than 15 % but less than 25 % and covering a minimum horizontal area of 3/10 of an acre or 13,068 square feet.

Extremely steep slope: A slope greater than 25 % and covering a minimum hori-zontal area of 2/10 of an acre or 8,712 square feet.

4) Types of restrictions

• “…It shall be unlawful to create any disturbance or to remove any tree with a di-ameter greater than four (4) inches, when measured from one and one half (1½) feet from ground level, on any steep slope as defined by this section, other than an exempt activity as defined herein, without a specific written permit as required by this section…”

• Exempt activities: any customary landscaping …is allowed without the need for obtaining a permit

Zoning & Affordable Housing

• Restrictive Planned Use Developments (PUDs) that result in housing that is not affordable because of expensive-to-build conditions imposed

• Zoning can be improperly used to try to bar access to housing for certain classes of individuals

1) Builder's remedy (Toll Brothers case) – what exactly is the” builder’s remedy”?

Stormwater Runoff from Construction Sites

1) Why are we concerned about this?

2) Clean Water Act ==> NPDES (Feds)===> SPDES (state: NYSDEC) ===> requires construction permit for site runoff

Pursuant to Section 402 of the Clean Water Act (“CWA”), stormwater discharges Pursuant to Section 402 of the Clean Water Act (“CWA”), stormwater discharges to waters of the United States1 are unlawful unless they are authorized by a to waters of the United States1 are unlawful unless they are authorized by a NPDES (National Pollutant Discharge Elimination System) permit or by a state NPDES (National Pollutant Discharge Elimination System) permit or by a state permit program.permit program.

New York’s SPDES (State Pollutant Discharge Elimination System) is a NPDES-New York’s SPDES (State Pollutant Discharge Elimination System) is a NPDES-approved program with permits issued in accordance with the Environmental approved program with permits issued in accordance with the Environmental Conservation Law (“ECL”). Conservation Law (“ECL”).

A SPDES General Permit for Stormwater Discharges is required for A SPDES General Permit for Stormwater Discharges is required for discharges discharges from certain construction activities from certain construction activities

Operators of construction activities underway after March 10, 2003 involving Operators of construction activities underway after March 10, 2003 involving one acre or more of land disturbanceone acre or more of land disturbance must obtain SPDES permit coverage must obtain SPDES permit coverage through either an individual permit or the new General Construction Permit (GP-through either an individual permit or the new General Construction Permit (GP-02-01 - a “Phase II permit”)02-01 - a “Phase II permit”)

As of April, 2008 ,oAs of April, 2008 ,owners or operators of construction activities located in the NYC Watershed - East of the Hudson that disturb between five thousand (5000) square feet and one (1) acre of land are required to gain coverage under the new general permit prior to commencing construction activity.

3) Review the chart on the permit process (NOI, implications of being in a TMDL or other special area, etc.) – if there is a question, chart will be supplied

4) 5 day permit vs 60 day permit

If an applicant certifies that the SWPPP has been developed in conformance with If an applicant certifies that the SWPPP has been developed in conformance with DEC standards, the applied-for activity may obtain coverage under this general DEC standards, the applied-for activity may obtain coverage under this general permit in five (5) business days after DEC receives NOI provided the activity is permit in five (5) business days after DEC receives NOI provided the activity is eligible for coverage and DEC has not informed the applicant otherwise.eligible for coverage and DEC has not informed the applicant otherwise.

If deviations from DEC standards are required and identified in SWPPP and If deviations from DEC standards are required and identified in SWPPP and certicerti--fied by a licensed/certified professional, applicants must allow 60 business days fied by a licensed/certified professional, applicants must allow 60 business days after the receipt by DEC of NOI and certification before gaining coverage under after the receipt by DEC of NOI and certification before gaining coverage under this general permit and before initiating any construction activity.this general permit and before initiating any construction activity.

5) Erosion and Sediment Control (ESC) Plan – needed at a minimum

• DEC technical standards for erosion and sediment control are contained in the DEC technical standards for erosion and sediment control are contained in the “Blue Book” document, “Blue Book” document, ““New York Standards and Specifications for Erosion andNew York Standards and Specifications for Erosion and Sediment Control Sediment Control ” ( ” ( published by the Empire State Chapter of the Soil and Waterpublished by the Empire State Chapter of the Soil and Water Conservation Society.) Conservation Society.)

• also downloadable by chapter also downloadable by chapter herehere• Blue Book Lite Blue Book Lite @ DEC site – condensed version@ DEC site – condensed version•• If compliance with these standards are certified, a “5 day permit” will issueIf compliance with these standards are certified, a “5 day permit” will issue

6) Stormwater Pollution Prevention Plan (SWPPP)

•• A StormWater Pollution Prevention Plan (SWPPP) shall be developed by the opA StormWater Pollution Prevention Plan (SWPPP) shall be developed by the op--erator for construction activities at each site to be covered by the permit erator for construction activities at each site to be covered by the permit

•• The SWPPP shall:The SWPPP shall:identify potential sources of pollutionidentify potential sources of pollution which may reasonably be expected to affect the which may reasonably be expected to affect the quality of stormwater discharges quality of stormwater discharges describe and ensure the implementation of practicesdescribe and ensure the implementation of practices which will be used which will be used to reduce the polto reduce the pol--lutants in stormwater discharges lutants in stormwater discharges assure complianceassure compliance with the terms and conditions of the permit with the terms and conditions of the permit Include erosion and sediment controls (E&SC)Include erosion and sediment controls (E&SC)

•• For TMDL areas, For TMDL areas, the SWPPP must include a certification by a licensed/certified the SWPPP must include a certification by a licensed/certified professional professional

•• Owner/ operator also responsible for complying with stormwater management reOwner/ operator also responsible for complying with stormwater management re--quirements of any local government having jurisdiction over the project quirements of any local government having jurisdiction over the project

7) review sample Westlake H.S. SWPPP

8) know some types of mitigation (swales, detention basins, etc) – see Blue Book Lite

9) Review the “blue book”

Environmental Site Assessments

1) When required?

2) For what purpose? i.e. why do we do ESAs? - due diligence and safe harbors (e.g. innocent landowner defense under Superfiund); lenders will require

• Superfund imposes liability for removal and remediation costs and this liability is strict, joint & several, & retroactive.

• Historically, under Superfund the owner or operator of a contaminated property could be held responsible for the property's cleanup, based solely on his/her cur-rent ownership of the property.

Who can defend against Superfund liability?

• Bona Fide Prospective Purchasers (BFPPs)BFPPs must perform all appropriate inquiry prior to purchase and may buy knowing, or having reason to know, of contamination on the property

• Contiguous Property Owners (CPOs)CPOs are owners of property that is not the source of the contamination. CPOs must perform all appropriate inquiry prior to purchase and buy without knowing, or having reason to know, of contamination on the property.

• Innocent Landowners (ILOs)ILO’s must perform all appropriate inquiry prior to purchase and must buy without know-ing, or having reason to know, of contamination on the property.

• What’s the common thread?• must perform All Appropriate Inquiry !

3) What is “all appropriate inquiry”

• EPA issued a final rule for "All Appropriate Inquiry" that became become effec-tive on November 1, 2006. 

• The new rule affects environmental due diligence conducted by prospective purchasers of commercial real estate, as well as other entities who wish to avail themselves of "Superfund" (CERCLA) liability protections. 

4) Scope of a Phase 1 –i.e. records review + site inspection + interviews + report

• A Phase I environmental site assessment requires that an appropriately qualified environmental professional review to do the following:

review existing records concerning the siteresearch the operational history of the siteconduct a site visit and interviews to determine whether the potential exists for contami-nation at the site

• Phase I site assessments are used to identify existing or past signs of potential contamination at a property. Contamination can consist of hazardous substances, hazardous waste and petroleum products.

• i.e. Phase I = Records + Visit + Interviews

5) ASTM 1527 – general requirements – just be generally familiar with it

• ASTM Standard 1527 defines good commercial and customary practice in the U.S. for conducting an environmental site assessment2 of a parcel of commercial real estate. Pursuant to ASTM 1527, a “data failure” is defined as a failure to achieve the historical research objectives even after reviewing the standard histor-ical sources that are reasonably ascertainable and likely to be useful. A data gap is defined as a lack of or inability to obtain information required by this practice de-spite good faith efforts by the environmental professional to gather such informa-tion.

• Even assuming no negligence on the part of Impact Environmental, clearly there was a data failure and a data gap since 38 drywells were not discovered either during the site visit or during a review of public documents.

• However, ASTM 1527 recognizes that no environmental site assessment can wholly eliminate uncertainty regarding the potential for recognized environmental conditions in connection with a property and that performance of this practice is intended to reduce, but not eliminate, uncertainty regarding the potential for rec-ognized environmental conditions in connection with a property. It also recog-nizes reasonable limits of time and cost.

• ASTM 1527 also notes that “all appropriate inquiry” does not mean an exhaustive assessment of a clean property. There is a point at which the cost of information obtained or the time required to gather it outweighs the usefulness of the informa-tion and, in fact, may be a material detriment to the orderly completion of transac-tions. One of the purposes of ASTM 1527 is to identify a balance between the competing goals of limiting

• The costs and time demands inherent in performing an environmental site assess-ment and the reduction of uncertainty about unknown conditions resulting from additional information.

6) What requirements does a Phase 2 (testing) and/or Phase 3 (extent of contamination) study add?

Phase 2

• A Phase II environmental site assessment is a detailed evaluation of environmen-tal conditions at a property.

• This evaluation relies on the collection and analysis of soil, sediment, soil vapor and/or groundwater samples, and other measurements taken at the site to confirm and quantify the presence of environmental contamination at the property.

• The Phase II site assessment is designed to evaluate the degree of contamination and health or environmental risk posed by exposure to such contamination.

Phase 3•• Delineation: Delineation: Vertical and horizontal limits of the extent of contamination. EvaluVertical and horizontal limits of the extent of contamination. Evalu--

ate risks to human health and environment, and propose remedial actions. ate risks to human health and environment, and propose remedial actions. •• Remediation:Remediation: Conduct remediation using an appropriate technology Conduct remediation using an appropriate technology• If contamination is confirmed and the levels of contaminants are known, an as-

sessment of risks to human health and the environment may be conducted to de-termine how people and/or the environment could be affected.

• Once a risk assessment has been conducted or a comparison is made to state or federal cleanup standards, a decision can be made as to whether or not the prop-erty poses an unacceptable environmental or health risk.

• If unacceptable risk is determined to exist at the site, a plan can be developed to clean up the property and reduce risks to humans and the environment.

• It may not provide sufficient information to estimate the exact quantity of wastes to be addressed or the costs of cleanup. Additional work may be needed.

7) Liability for environmental professionals

• Environmental Professional means:• (1) a person who possesses sufficient specific education, training, and experience

necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases on, at, in, or to a property, sufficient to meet the objectives and performance factors

• (2) Such a person must:(i) Hold a current Professional Engineer's or Professional Geologist's license or registra-tion from a state, tribe, or U.S. territory and have the equivalent of three (3) years of full-time relevant experience; or(ii) Be licensed or certified by the federal government, a state, tribe, or U.S. territory (or the Commonwealth of Puerto Rico) to perform environmental inquiries and have the equivalent of three (3) years of full-time relevant experience; or(iii) Have a Baccalaureate or higher degree from an accredited institution of higher edu-cation in a discipline of engineering or science and the equivalent of five (5) years of full-time relevant experience; or(iv) Have the equivalent of ten (10) years of full-time relevant experience.

Sustainability/ Green Buildings (you do not need to know a lot of details for this topic; some general awareness of developments is OK)

1) General awareness of some benefits (water conservation, capture stormwater & decrease runoff, energy savings, recyle/treat wastewater for flushing, etc.) potential water quality benefits, aesthetics. Etc.

2) General knowledge of green roofs (e.g. layering, barriers, plantings, etc)

3) Trend towards regulation and more formalization as opposed to current generally voluntary participation; benefits of green building certification for marketing, etc.); government requirements (Federal, state)

4) General awareness of existence of certification processes (e.g. LEEDS)

5) Pros/cons of greening; “greenwashing”