Lighthouse Pointe Property Associates LLC v. New York State Department of Environmental Conservation

61 A.D.3d 88, 872 N.Y.S.2d 766

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 2009
• Status: Published

Opinions

OPINION OF THE COURT

Fahey, J.

The issue before us on this appeal is whether Supreme Court erred in granting the petition in this CPLR article 78 proceeding and directing respondent New York State Department of Environmental Conservation (DEC) to accept petitioner into the Brownfield Cleanup Program (BCP), set forth in Environmental Conservation Law (ECL) article 27, title 14. We conclude that the court erred in determining that the DEC acted in an arbitrary and capricious manner in denying petitioner’s applications for acceptance into the BCE We therefore conclude that the judgment should be reversed and the petition dismissed.

Background

This appeal arises from petitioner’s efforts to develop contiguous 22-acre and 25.4-acre parcels. The first of the parcels (Riverfront parcel) is located on the east side of the Genesee River in the Town of Irondequoit and the City of Rochester, close to the confluence of the Genesee River and Lake Ontario, while the second of the two parcels (Inland parcel) is located near the east side of the Genesee River (collectively, the site). Petitioner proposes to develop the site as a mixed-use neighborhood, including residential complexes, a marina, restaurants and a hotel. Petitioner estimates that the cost of the project will range between $150 million and $250 million.

The site presently is between 8 and 25 feet above mean lake level and has groundwater at approximately seven feet below surface level. The site is located across the Genesee River from the historic Charlotte lighthouse, which was once on the shore of Lake Ontario. According to one of petitioner’s members, however, the lighthouse is now a “good distance” from the mouth of the Genesee River because the marshland in that area “filled in.” Petitioner acknowledges that most of the site is located on a 100-year flood zone and encompasses what was historically a marsh area.

Much of the site was deemed wasteland during the early to mid-twentieth century. Most of the Inland parcel is located within the footprint of a city landfill that operated from at least 1956 to 1962 and that served as a depository for residential refuse, ash, slag, sewage sludge and construction debris. The site has fill material ranges of 4 to 26 feet in depth, and at least some of the ground at that location is unstable. A wastewater treatment plant was located on a portion of the Inland parcel for approximately 60 years. The plant ceased to operate in the early 1980s and was demolished in the late 1990s. Sewage sludge from that plant was disposed of on the part of the site that contained a landfill through roughly 1970. Today, the portions of the site that are not vacant are primarily used for boat storage and parking.

The Brownfield Cleanup Program Act

The Brownfield Cleanup Program Act was enacted in 2003 to encourage voluntary remediation of brownfield sites for reuse and redevelopment (see ECL 27-1403). A brownfield site, with certain exceptions not relevant herein, is defined as “any real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of a contaminant” (ECL 27-1405 [2]). The term contaminant is defined as “hazardous waste and/or petroleum” (ECL 27-1405 [7-a]).

Participation in the BCP is subject to DEC approval (see ECL 27-1407 [1]; 6 NYCRR 375-3.4 [c]). The ECL lists grounds that mandate exclusion from the program (see ECL 27-1407 [8]; see also 6 NYCRR 375-3.3), including the failure of “real property [to] meet the requirements of a brownfield site” (ECL 27-1407 [8] [a]).

The benefits of admission to the BCP are at least twofold: successful applicants are entitled to significant tax credits (see Tax Law §§ 21-23; 6 NYCRR 375-3.9 [e]) and, upon completion of remediation, they also are entitled to a release from liability to the State of New York “arising out of the presence of any contamination in, on or emanating from the brownfield site” (ECL 27-1421 [1]). The release from liability is critical to financing brownfield projects, inasmuch as lenders are understandably wary of becoming responsible for toxic land in the event of a debtor’s default in payment.

Once accepted into the BCt] participants are required to enter into a site cleanup agreement with the DEC (see ECL 27-1409 [8]). As required by statute (see ECL 27-1415 [6] [a]), the DEC has developed soil cleanup objectives (SCOs) considering various uses of land and 85 specific contaminants (see 6 NYCRR 375-6.1, 375-6.8 [b]). The SCOs are “remedial action objectives” (ECL 27-1415 [6] [a]) and, according to the DEC, they are intended to act as benchmarks for sites within a remedial program, not as guidelines for admission. The applicable SCO category for the uses contemplated by the project in question is ‘‘[r]estricted-residential’’ (6 NYCRR 375-1.8 [g] [2] [ii]).

Procedural History

In November 2006 petitioner filed two applications for admission into the BCI] one for each of the parcels at the site. Those applications were supported by a remedial investigation report (RI Report) prepared for petitioner by its environmental consultant. In the RI Report, the environmental consultant identified numerous instances of “exceedances of soil and groundwater cleanup standards for a number of contaminants” and recommended various remedial measures to treat those “ex-ceedances.” The estimated cost of the remedial measures ranged from $4 million to $8 million and, by contrast, the assessed value of the site is approximately $1.3 million. The DEC denied petitioner’s applications on the ground that “there is no reasonable basis to believe that contamination or the potential presence of contamination ... is complicating the redevelopment or reuse of the property,” and thus the site does not meet the definition of a “brownfield site” as defined in ECL 27-1405 (2).

Petitioner commenced this proceeding in July 2007, seeking to annul the determination of the DEC denying its BCP applications. Petitioner alleged with respect to the Riverfront parcel that the RI Report “shows exceedances of the restricted use residential SCOs . . . for numerous hazardous wastes, including benzo (a) anthracene, benzo (a) pyrene, benzo (b) flouranthene, lead and mercury.” Petitioner further alleged that exceedances of recommended SCOs set forth in a DEC Technical and Administrative Guidance Memorandum were observed in surface samples for those hazardous wastes, as well as metals including nickel and zinc. In addition, according to the RI Report, exceedances of ambient water quality standards were observed at all groundwater monitoring wells on the Riverfront parcel. Sampling of the water at that site revealed the presence of approximately 18 metals.

With respect to the Inland parcel, petitioner alleged that testing revealed exceedances of restricted use residential SCOs for numerous hazardous wastes, as well as exceedances of ambient water quality standards at all groundwater monitoring wells. Arsenic and specified metals were found in those wells. Petitioner further alleged that soil vapor probes confirmed the presence of volatile organic compounds in excess of health risk standards, and high concentrations of explosive methane also were detected at the Inland parcel.

Respondents sought dismissal of the petition, relying largely on the affidavit of an environmental engineer employed by the DEC. In that affidavit, the DEC employee considered the prior use of the parcels and addressed each paragraph of the petition alleging contamination. He then found that “the exceedances [of SCOs] were relatively few and not in great magnitude” and that, viewed in its entirety, petitioner’s data failed to “indicate the presence of contamination at the property in quantities or concentrations sufficient to require remediation.” The DEC employee further concluded that “[t]he highest values in soil vapor were encountered in the vicinity . . . where there are no current structures,” and that “[w]hether indoor air in a structure later constructed in that area would pose a potential health risk cannot be determined from these exceedances.” The DEC employee further noted that, in any event, the soil vapor results yielded only screening values that are used to determine whether further actions are required, but they did not confirm the presence of a health risk. In sum, the DEC employee concluded that the exceedances revealed by both historical and current sampling data were few in number, were limited in magnitude, were widely dispersed throughout the property, and did not indicate the need for remedial action. In his view, the majority of the environmental costs associated with the project would arise from the disposal of municipal solid waste, rather than the disposal of hazardous waste, and the “extra engineering and design requirements generally make development of a former municipal landfill cost prohibitive.”

In challenging the conclusions of the DEC employee, petitioner submitted, inter alia, the affidavit of a professional engineer stating that the DEC’s determination was contrary to the data collected at the site. Petitioner also submitted the affidavit of an owner of the portion of the site stating that prior efforts to develop his property at the site were abandoned because of complications posed by the hazardous substances located there.

As previously noted, the court granted the petition and directed the DEC to accept petitioner into the BCP based in part on the court’s conclusion that the DEC failed “to state the reasoning [it] employed in reaching” its decision that the SCO exceedances were minimal and thus would not complicate the project. The court concluded that “[b]y failing to provide any rational basis for [its] determination that the development of [the parcels] would not, or could not, be complicated by the possible presence of even minimal levels of contaminants, the DEC has failed to demonstrate that [its] actions were anything but arbitrary and capricious.” This appeal ensued.

Discussion

“[I]n a proceeding seeking judicial review of administrative action, the court may not substitute its judgment for that of the agency responsible for making the determination” (Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363 [1987]; see Matter of Bath Petroleum Stor. v New York State Dept. of Envtl. Conservation, 298 AD2d 883 [2002], Iv denied 99 NY2d 507 [2003]). “[W]here. . . the judgment of the agency involves factual evaluations in the area of the agency’s expertise and is supported by the record, such judgment must be accorded great weight and judicial deference” (Flacke, 69 NY2d at 363; see Bath Petroleum Stor., 298 AD2d at 883). “[0]nce it has been determined that an agency’s conclusion has a ‘sound basis in reason’ . . ., the judicial function is at an end” (Paramount Communications v Gibraltar Cas. Co., 90 NY2d 507, 514 [1997], rearg denied 90 NY2d 1008 [1997]; see Matter of Smith v New York State Div. of Hous. & Community Renewal, 27 AD3d 1063, 1064 [2006]).

The recent decision of the Court of Appeals in Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast (9 NY3d 219, 232 [2007]) reiterates the above-referenced rules:

“It is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence. The . . . agency, after all, has the responsibility to comb through reports, analyses and other documents before making a determination; it is not for a reviewing court to duplicate these efforts. As we have repeatedly stated, ‘[w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to “weigh the desirability of any action or [to] choose among alternatives.” ’ ”

Based on the well-established principles of the role of the courts in reviewing agency determinations, the issue before us is whether the DEC acted irrationally or in an arbitrary and capricious manner in determining that the redevelopment of the site would not be complicated by the presence or potential presence of contaminants there (see ECL 27-1405 [2]). It is beyond dispute that reasonable minds may differ in the interpretation and analysis of the data collected at the site, and it therefore cannot be said that the rejection by the DEC of petitioner’s BCP applications was unsupported by the evidence, nor can it be said that the DEC acted in an arbitrary and capricious manner in rejecting those applications. The determination of the DEC was premised upon the results of a thoughtful analysis performed by an environmental engineer who considered and based his opinion on the testing conducted on behalf of the DEC, as well as the data submitted by petitioner. Inasmuch as it is not the province of the courts to second-guess a reasoned agency determination or to invade the process by which such a conclusion is reached (see e.g. Riverkeeper, 9 NY3d at 232; Paramount Communications, 90 NY2d at 514; Flacke, 69 NY2d at 363), the petition should have been dismissed. The DEC’s well-reasoned analysis of the BCP applications of petitioner, coupled with the mandate that we must not substitute our judgment for that of the DEC, compels the conclusion that the court erred in granting the petition and directing the DEC to accept petitioner into the BCE

Conclusion

Accordingly, we conclude that the judgment should be reversed and the petition dismissed.