§ 970-R — State assistance for brownfield opportunity areas

§ 970-r. State assistance for brownfield opportunity areas. 1.\nDefinitions. a. "Applicant" shall mean the municipality, community board\nand/or community based organization submitting an application for state\nassistance or a nomination for designation in the manner authorized by\nthis section.\n b. "Commissioner" shall mean the commissioner of the department of\nenvironmental conservation.\n c. "Community based organization" shall mean a not-for-profit\ncorporation exempt from taxation under section 501(c)(3) of the internal\nrevenue code whose stated mission is promoting reuse of brownfield sites\nor community revitalization within a specified geographic area in which\nthe community based organization is located; which has twenty-five\npercent or more of its board of directors residing in the community in\nsuch area; and represents a community with a demonstrated financial\nneed. "Community based organization" shall not include any\nnot-for-profit corporation that has caused or contributed to the release\nor threatened release of a contaminant from or onto the brownfield site,\nor any not-for-profit corporation that generated, transported, or\ndisposed of, or that arranged for, or caused, the generation,\ntransportation, or disposal of contamination from or onto the brownfield\nsite. This definition shall not apply if more than twenty-five percent\nof the members, officers or directors of the not-for-profit corporation\nare or were employed or receiving compensation from any person\nresponsible for a site under title thirteen or title fourteen of article\ntwenty-seven of the environmental conservation law, article twelve of\nthe navigation law or under applicable principles of statutory or common\nlaw liability.\n d. "Brownfield site" shall have the same meaning as set forth in\nsection 27-1405 of the environmental conservation law.\n e. "Department" shall mean the department of state.\n f. "Contamination" or "contaminated" shall have the same meaning as\nprovided in section 27-1405 of the environmental conservation law.\n g. "Municipality" shall have the same meaning as set forth in\nsubdivision fifteen of section 56-0101 of the environmental conservation\nlaw.\n h. "Community board" shall have the same meaning as set forth in\nsection twenty-eight hundred of the New York city charter.\n i. "Secretary" shall mean the secretary of state.\n j. "Nomination" shall mean a written plan for redevelopment and\nrevitalization of any area (i) wherein one or more known or suspected\nbrownfield sites are located and (ii) that contains the elements\nrequired for brownfield opportunity area designation as determined in\naccordance with subdivision three of this section. It is not necessary\nthat all, or any, of the services used to identify, prepare, create, or\ndevelop the elements required for designation be funded through this\nsection.\n 2. State assistance for pre-nomination study for brownfield\nopportunity areas. a. Within the limits of appropriations therefor, the\nsecretary is authorized to provide, on a competitive basis, financial\nassistance to municipalities, to community based organizations, to\ncommunity boards, or to municipalities and community based organizations\nacting in cooperation to prepare a pre-nomination study for a brownfield\nopportunity area designation. Such financial assistance shall not exceed\nninety percent of the costs of such pre-nomination study for any such\narea.\n b. Activities eligible to receive such assistance shall include, but\nare not limited to, the assembly and development of basic information\nabout:\n (1) the borders of the proposed brownfield opportunity area;\n (2) the number and size of known or suspected brownfield sites;\n (3) current and anticipated uses of the properties in the proposed\nbrownfield opportunity area;\n (4) current and anticipated future conditions of groundwater in the\nproposed brownfield opportunity area;\n (5) known data about the environmental conditions of the properties in\nthe proposed brownfield opportunity area;\n (6) ownership of the properties in the proposed brownfield opportunity\narea and whether the owners are participating in the brownfield\nopportunity area planning process; and\n (7) preliminary descriptions of possible remediation strategies, reuse\nopportunities, necessary infrastructure improvements and other public or\nprivate measures needed to stimulate investment, promote revitalization,\nsupport job growth, reduce greenhouse gas emissions, increase climate\nresilience, enhance community health and environmental conditions, and\nachieve environmental justice.\n c. Funding preferences shall be given to applications for such\nassistance that relate to areas having one or more of the following\ncharacteristics:\n (1) areas for which the application is a partnered application by a\nmunicipality and a community based organization;\n (2) areas with concentrations of known or suspected brownfield sites;\n (3) areas for which the application demonstrates support from a\nmunicipality and a community based organization;\n (4) areas showing indicators of economic distress including low\nresident incomes, high unemployment, high commercial vacancy rates,\ndepressed property values; and\n (5) areas with known or suspected brownfield sites presenting\nstrategic opportunities to stimulate economic development, community\nrevitalization or the siting of public amenities.\n d. The secretary, upon the receipt of an application for such\nassistance from a community based organization not in cooperation with\nthe local government having jurisdiction over the proposed brownfield\nopportunity area, shall request the municipal government to review and\nstate the municipal government's support or lack of support; provided,\nhowever, in the city of New York, such statement shall be provided by\nthe community board or boards for the district or districts in which the\nproposed area is located. The municipal government's or community\nboard's statement shall be considered a part of the application.\n e. Each application for assistance shall be submitted to the secretary\nin a format, and containing such information, as prescribed by the\nsecretary but shall include, at a minimum, the following:\n (1) a statement of the rationale or relationship between the proposed\nassistance and the criteria set forth in this subdivision for the\nevaluation and ranking of assistance applications;\n (2) the processes by which local participation in the development of\nthe application has been sought;\n (3) the process to be carried out with the state assistance including,\nbut not limited to, the goals of and budget for the effort, the work\nplan and timeline for the attainment of these goals, and the intended\nprocess for community participation in the process;\n (4) the manner and extent to which public or governmental agencies\nwith jurisdiction over issues that will be addressed in the data\ngathering process will be involved in this process;\n (5) other planning and development initiatives proposed or in progress\nin the proposed brownfield opportunity area; and\n (6) for each community based organization which is an applicant or a\nco-applicant, a copy of its determination of tax exempt status issued by\nthe federal internal revenue service pursuant to section 501 of the\ninternal revenue code, a description of the relationship between the\ncommunity based organization and the area that is the subject of the\napplication, its financial and institutional accountability, its\nexperience in conducting and completing planning initiatives and in\nworking with the local government associated with the proposed\nbrownfield opportunity area.\n f. Prior to making an award for assistance, the secretary shall notify\nthe temporary president of the senate and speaker of the assembly.\n g. Following notification to the applicant that assistance has been\nawarded, and prior to disbursement of funds, a contract shall be\nexecuted between the department and the applicant or co-applicants. The\nsecretary shall establish terms and conditions for such contracts as the\nsecretary deems appropriate, including provisions to define: applicant's\nwork scope, work schedule, and deliverables; fiscal reports on budgeted\nand actual use of funds expended; and requirements for submission of a\nfinal fiscal report. The contract shall also require the distribution of\nwork products to the department, and, for community based organizations,\nto the applicant's municipality. Applicants shall be required to make\nthe results publicly available.\n 3. State assistance for nominations to designate brownfield\nopportunity areas. a. Within the limits of appropriations therefor, the\nsecretary is authorized to provide, on a competitive basis, financial\nassistance to municipalities, to community based organizations, to\ncommunity boards, or to municipalities and community based organizations\nacting in cooperation to prepare a nomination for designation of a\nbrownfield opportunity area. Such financial assistance shall not exceed\nninety percent of the costs of such nomination for any such area. A\nnomination study must include sufficient information to designate the\nbrownfield opportunity area. The contents of the nomination study shall\nbe developed based on pre-nomination study information, if conducted,\nwhich shall principally consist of an area-wide study, documenting the\nhistoric brownfield uses in the area proposed for designation.\n b. An application for such financial assistance shall include an\nindication of support from owners of brownfield sites in the proposed\nbrownfield opportunity area. All residents and property owners in the\nproposed brownfield opportunity area shall receive notice in such form\nand manner as the secretary shall prescribe.\n c. No application for such financial assistance shall be considered\nunless the applicant demonstrates that it has, to the maximum extent\npracticable, solicited and considered the views of residents of the\nproposed brownfield opportunity area, the views of state and local\nofficials elected to represent such residents and the local\norganizations representing such residents.\n d. Activities eligible to receive such financial assistance shall\ninclude the identification, preparation, creation, development and\nassembly of information and elements to be included in a nomination for\ndesignation of a brownfield opportunity area, including but not limited\nto:\n (1) the borders of the proposed brownfield opportunity area;\n (2) the location and size of each known or suspected brownfield site\nin the proposed brownfield opportunity area;\n (3) the identification of strategic sites within the proposed\nbrownfield opportunity area;\n (4) the type of potential developments anticipated for sites within\nthe proposed brownfield opportunity area proposed by either the current\nor the prospective owners of such sites;\n (5) local legislative or regulatory action which may be required to\nimplement a plan for the redevelopment of the proposed brownfield\nopportunity area;\n (6) priorities for public and private investment in infrastructure,\nopen space, economic development, housing, or community facilities in\nthe proposed brownfield opportunity area;\n (7) identification and mapping of current and anticipated uses of the\nproperties and groundwater in the proposed brownfield opportunity area;\n (8) existing detailed assessments of individual brownfield sites and,\nwhere the consent of the site owner has been obtained, the need for\nconducting on-site assessments;\n (9) known data about the environmental conditions of properties in the\nproposed brownfield opportunity area;\n (10) ownership of the known or suspected brownfield properties in the\nproposed brownfield opportunity area to the extent such information is\npublicly available;\n (11) descriptions of possible remediation strategies, reuse\nopportunities, brownfield redevelopment, necessary infrastructure\nimprovements and other public or private measures needed to stimulate\ninvestment, promote revitalization, support job growth, reduce\ngreenhouse gas emissions, increase climate resilience, enhance community\nhealth and environmental conditions, and achieve environmental justice;\n (12) the goals and objectives, both short term and long term, for the\neconomic revitalization of the proposed brownfield opportunity area;\n (13) the publicly controlled and other developable lands and buildings\nwithin the proposed brownfield opportunity area which are or could be\nmade available for residential, industrial and commercial development;\nand\n (14) a community participation strategy to maximize public awareness\nand to solicit and consider the views of residents, businesses and other\nstakeholders of the proposed brownfield opportunity area.\n e. Funding preferences shall be given to applications for such\nassistance that relate to areas having one or more of the following\ncharacteristics:\n (1) areas for which the application is a partnered application by a\nmunicipality and a community based organization;\n (2) areas with concentrations of known or suspected brownfield sites;\n (3) areas for which the application demonstrates support from a\nmunicipality and a community based organization;\n (4) areas showing indicators of economic distress including low\nresident incomes, high unemployment, high commercial vacancy rates,\ndepressed property values; and\n (5) areas with known or suspected brownfield sites presenting\nstrategic opportunities to stimulate economic development, community\nrevitalization or the siting of public amenities.\n f. Each application for such assistance shall be submitted to the\nsecretary in a format, and containing such information, as prescribed by\nthe secretary but shall include, at a minimum, the following:\n (1) a statement of the rationale or relationship between the proposed\nassistance and the criteria set forth in this section for the evaluation\nand ranking of assistance applications;\n (2) the processes by which local participation in the development of\nthe application has been sought;\n (3) the process to be carried out under the state assistance\nincluding, but not limited to, the goals of and budget for the effort,\nthe work plan and timeline for the attainment of these goals, and the\nintended process for public participation in the process;\n (4) the manner and extent to which public or governmental agencies\nwith jurisdiction over issues that will be addressed in the data\ngathering process will be involved in this process;\n (5) other planning and development initiatives proposed or in progress\nin the proposed brownfield opportunity area;\n (6) for each community based organization which is an applicant or a\nco-applicant, a copy of its determination of tax exempt status issued by\nthe federal internal revenue service pursuant to section 501 of the\ninternal revenue code, a description of the relationship between the\ncommunity based organization and the area that is the subject of the\napplication, its financial and institutional accountability, its\nexperience in conducting and completing planning initiatives and in\nworking with the local government associated with the proposed\nbrownfield opportunity area; and\n (7) the financial commitments the applicant will make to the\nbrownfield opportunity area for activities including, but not limited\nto, marketing of the area for business development, human resource\nservices for residents and businesses in the brownfield opportunity\narea, and services for small and minority and women-owned businesses.\n g. An application for such assistance from a community based\norganization not in cooperation with the local government having\njurisdiction over the proposed brownfield opportunity area, shall\ninclude a resolution from the city, town, or village with planning and\nland use authority in which the brownfield opportunity area is proposed,\nstating support or lack of support; provided, however, in the city of\nNew York, such resolution shall be provided by the community board or\nboards for the district or districts in which the proposed area is\nlocated. The resolution from each city, town, village, or community\nboard shall be considered a part of the application.\n h. Prior to making an award for assistance, the secretary shall notify\nthe temporary president of the senate and speaker of the assembly.\n i. Following notification to the applicant that assistance has been\nawarded, and prior to disbursement of funds, a contract shall be\nexecuted between the department and the applicant or co-applicants. The\nsecretary shall establish terms and conditions for such contracts as the\nsecretary deems appropriate, including provisions to define: applicant's\nwork scope, work schedule, and deliverables; fiscal reports on budgeted\nand actual use of funds expended; and requirements for submission of a\nfinal fiscal report. The contract shall also require the distribution of\nwork products to the department, and, for community based organizations,\nto the applicant's municipality. Applicants shall be required to make\nthe results publicly available. Such contract shall further include a\nprovision providing that if any responsible party payments become\navailable to the applicant, the amount of such payments attributable to\nexpenses paid by the award shall be paid to the department by the\napplicant; provided that the applicant may first apply such responsible\nparty payments toward any actual project costs incurred by the\napplicant.\n 3-a. State assistance for activities to advance brownfield opportunity\narea revitalization. a. Within amounts appropriated therefor, the\nsecretary is authorized to provide, on a competitive basis, financial\nassistance to municipalities, to community based organizations, to\ncommunity boards, or to community based organizations acting in\ncooperation with a municipality, to conduct predevelopment activities\nwithin a designated brownfield opportunity area to advance the goals and\npriorities of the brownfield opportunity area program set forth in the\nnomination of such area. Such financial assistance shall not exceed\nninety percent of the costs of such activities. Activities eligible to\nreceive such assistance shall include: development and implementation of\nmarketing strategies; development of plans and specifications; real\nestate services; building condition studies; infrastructure analyses;\nzoning and regulatory updates; environmental, housing and economic\nstudies, analyses and reports; renewable energy feasibility studies,\nlegal and financial services; and public outreach.\n b. Funding preferences shall be given to applications for such\nassistance that relate to areas having one or more of the following\ncharacteristics:\n (1) areas showing indicators of economic distress including low\nresident incomes, high unemployment, high commercial vacancy rates,\ndepressed property values; and\n (2) areas with known or suspected brownfield sites presenting\nstrategic opportunities to stimulate economic development, community\nrevitalization or the siting of public amenities.\n c. Prior to making an award for assistance, the secretary shall notify\nthe temporary president of the senate and speaker of the assembly.\n d. Following notification to the applicant that assistance has been\nawarded, and prior to disbursement of funds, a contract shall be\nexecuted between the department and the applicant or co-applicants. The\nsecretary shall establish terms and conditions for such contracts as the\nsecretary deems appropriate, including provisions to define: applicant's\nwork scope, work schedule, and deliverables; fiscal reports on budgeted\nand actual use of funds expended; and requirements for submission of a\nfinal fiscal report. The contract shall also require the distribution of\nwork products to the department, and, for community based organizations,\nto the applicant's municipality. Applicants shall be required to make\nthe results publicly available. Such contract shall further include a\nprovision providing that if any responsible party payments become\navailable to the applicant, the amount of such payments attributable to\nexpenses paid by the award shall be paid to the department by the\napplicant; provided that the applicant may first apply such responsible\nparty payments toward any actual project costs incurred by the\napplicant.\n 4. Designation of brownfield opportunity area. Upon completion of a\nnomination for designation of a brownfield opportunity area, it shall be\nforwarded by the applicant to the secretary, who shall determine whether\nit is consistent with the provisions of this section. The secretary may\nreview and approve a nomination for designation of a brownfield\nopportunity area at any time. If the secretary determines that the\nnomination is consistent with the provisions of this section, the\nbrownfield opportunity area shall be designated. If the secretary\ndetermines that the nomination is not consistent with the provisions of\nthis section, the secretary shall make recommendations in writing to the\napplicant of the manner and nature in which the nomination should be\namended.\n 5. Priority and preference. The designation of a brownfield\nopportunity area pursuant to this section is intended to serve as a\nplanning tool. It alone shall not impose any new obligations on any\nproperty or property owner. To the extent authorized by law, projects in\nbrownfield opportunity areas designated pursuant to this section shall\nreceive a priority and preference when considered for financial\nassistance pursuant to articles fifty-four and fifty-six of the\nenvironmental conservation law. To the extent authorized by law,\nprojects in brownfield opportunity areas designated pursuant to this\nsection may receive a priority and preference when considered for\nfinancial assistance pursuant to any other state, federal or local law.\n 6. State assistance for brownfield site assessments in brownfield\nopportunity areas. a. Within the limits of appropriations therefor, the\nsecretary of state, is authorized to provide, on a competitive basis,\nfinancial assistance to municipalities, to community based\norganizations, to community boards, or to municipalities and community\nbased organizations acting in cooperation to conduct brownfield site\nassessments. Such financial assistance shall not exceed ninety percent\nof the costs of such brownfield site assessment.\n b. Brownfield sites eligible for such assistance must be owned by a\nmunicipality, or volunteer as such term is defined in section 27-1405 of\nthe environmental conservation law.\n c. Brownfield site assessment activities eligible for funding include,\nbut are not limited to, testing of properties to determine the nature\nand extent of the contamination (including soil and groundwater),\nenvironmental assessments, the development of a proposed remediation\nstrategy to address any identified contamination, and any other\nactivities deemed appropriate by the commissioner in consultation with\nthe secretary of state. Any environmental assessment shall be subject to\nthe review and approval of such commissioner.\n d. Applications for such assistance shall be submitted to the\nsecretary in a format, and containing such information, as prescribed by\nthe secretary in consultation with the commissioner.\n e. Funding preferences shall be given to applications for such\nassistance that relate to areas having one or more of the following\ncharacteristics:\n (1) areas for which the application is a partnered application by a\nmunicipality and a community based organization;\n (2) areas with concentrations of known or suspected brownfield sites;\n (3) areas for which the application demonstrates support from a\nmunicipality and a community based organization;\n (4) areas showing indicators of economic distress including low\nresident incomes, high unemployment, high commercial vacancy rates,\ndepressed property values; and\n (5) areas with known or suspected brownfield sites presenting\nstrategic opportunities to stimulate economic development, community\nrevitalization or the siting of public amenities.\n f. The secretary, upon the receipt of an application for such\nassistance from a community based organization not in cooperation with\nthe local government having jurisdiction over the proposed brownfield\nopportunity area, shall request the municipal government to review and\nstate the municipal government's support or lack of support. The\nmunicipal government's statement shall be considered a part of the\napplication.\n g. Prior to making an award for assistance, the secretary shall notify\nthe temporary president of the senate and the speaker of the assembly.\n h. Following notification to the applicant that assistance has been\nawarded, and prior to disbursement of funds, a contract shall be\nexecuted between the department and the applicant or co-applicants. The\ncommissioner shall establish terms and conditions for such contracts as\nthe commissioner deems appropriate in consultation with the secretary of\nstate, including provisions to define: applicant's work scope, work\nschedule, and deliverables; fiscal reports on budgeted and actual use of\nfunds expended; and requirements for submission of a final fiscal\nreport. The contract shall also require the distribution of work\nproducts to the department, and, for community based organizations, to\nthe applicant's municipality. Applicants shall be required to make the\nresults publicly available. Such contract shall further include a\nprovision providing that if any responsible party payments become\navailable to the applicant, the amount of such payments attributable to\nexpenses paid by the award shall be paid to the department by the\napplicant; provided that the applicant may first apply such responsible\nparty payments towards actual project costs incurred by the applicant.\n 7. Amendments to designated area. Any proposed amendment to a\nbrownfield opportunity area designated pursuant to this section shall be\nproposed, and reviewed by the secretary, in the same manner and using\nthe same criteria set forth in this section and applicable to an initial\nnomination for the designation of a brownfield opportunity area.\n 8. Community participation requirements. a. All applications for state\nassistance for pre-nomination or nomination study or applications for\ndesignation of a brownfield opportunity area shall demonstrate that the\nfollowing community participation activities have been or will be\nperformed by the applicant:\n (1) identification of the interested public and preparation of a\ncontact list;\n (2) identification of major issues of public concern;\n (3) public notice and newspaper notice of (i) the intent of the\nmunicipality and/or community based organization to undertake a\npre-nomination or nomination study or apply for designation of a\nbrownfield opportunity area, and (ii) the availability of such\napplication and any supporting documents in a manner convenient to the\npublic.\n b. Application for designation of a brownfield opportunity area shall\nprovide the following minimum community participation activities:\n (1) a comment period of at least thirty days on a draft nomination;\n (2) a public meeting on an application;\n (3) public access to such application, nomination, and any supporting\ndocuments in the manner convenient to the public.\n 9. Financial assistance; advance payment. Notwithstanding any other\nlaw to the contrary, financial assistance pursuant to this section\nprovided by the commissioner and the secretary pursuant to an executed\ncontract may include an advance payment up to twenty-five percent of the\ncontract amount.\n 10. The secretary shall establish criteria for brownfield opportunity\narea conformance determinations for purposes of the brownfield\nredevelopment tax credit component pursuant to clause (ii) of\nsubparagraph (B) of paragraph five of subdivision (a) of section\ntwenty-one of the tax law. In establishing criteria, the secretary shall\nbe guided by, but not limited to, the following considerations: how the\nproposed use and development advances the designated brownfield\nopportunity area plan's vision statement, goals and objectives for\nrevitalization; how the density of development and associated buildings\nand structures advances the plan's objectives, desired redevelopment and\npriorities for investment; and how the project complies with zoning and\nother local laws and standards to guide and ensure appropriate use of\nthe project site.\n