Brownfield Funds Available for Development in Fairfield, Connecticut

See the announcement from the Fairfield Chamber of Commerce:

“There is good news for those seeking to redevelop underutilized brownfield sites in the Bridgeport region. A ‘brownfield’ is a property for which redevelopment or reuse is complicated by the presence of a hazardous substance or pollutant. Metrocog, the regional planning agency to which Fairfield belongs, has funds available to assist in assessing as well as cleaning up these sites, primarily through a revolving loan fund administered by Community Capital Fund. Metrocog’s program focuses on brownfield sites in the vicinity of transit centers and corridors, but may encompass other sites throughout the region for which redevelopment has stalled due to contamination concerns. Those interested in obtaining more information about the program should contact the Department of Community & Economic Development at (203) 256-3120.”

If you have an interest in developing a Brownfield site, whether in Fairfield or elsewhere, please contact me for help in doing so!

A little over three years ago, I retired from Connecticut’s Wiggin and Dana, LLP, where I headed the firm’s environmental practice and have carried on since then as “The Trilling Environmental Law Firm,” a solo practice, where loyal clients have continued to engage my services.

I am pleased to announce that as of October 17, 2016, while maintaining the Trilling Environmental Law Firm (“Trill-EnviroLaw”) to continue to service currently active Trill-EnviroLaw matters, I have joined the Hickey Smith law firm, where I now lead the firm’s environmental law practice. I will contemporaneously be active at both Trill-EnviroLaw and Hickey Smith until the currently active Trill-EnviroLaw matters have concluded, at which time I will devote all my professional energies to serving Hickey Smith clients.

Hickey Smith comprises a new and unique model for a multi-disciplinary national law firm. In 2014, a group of exceptional lawyers who had long practiced in Am Law 100 international law firms came together to form a firm that would use twenty-first century technology to deliver services on a par with their prior firms and their “Big Law” peers, while developing new channels of transparency in attorney-client communications and providing services. While these services are provided at competitive rates, Hickey Smith focuses on greater efficiency, thereby reducing hours charged and substantial savings to the client.

Hickey Smith is a law firm purposely designed to deliver legal services with significantly greater efficiency, consistency, and added value. By deconstructing and refining traditional legal processes, applying workflow technology, and collecting and analyzing data, Hickey Smith is transforming the way legal services are delivered today. With an unrivaled combination of disciplined processes, technology expertise, and business leadership, Hickey Smith clients benefit from reduced total legal spend, improved quality, enhanced transparency, actionable insight, simplified management of outside counsel, and increased control.

While I will base my activities out of both our New York City office and my current office in Connecticut, I will provide services on both a national and international level, working with my Hickey Smith colleagues currently located across the United States in Atlanta GA, Chicago IL, Jacksonville FL, Pasadena CA, and Miami FL, as well as in Manila, Philippines. These lawyers are currently involved in matters not only in the jurisdictions where their offices are located but also throughout the United States in various business and litigation matters. I will serve Hickey Smith clients on a wide variety of matters that involve the interaction of environmental law with commercial business and real estate transactions, borrowing and lending, business formation, corporate disclosure, estates and trusts, insurance, land use, historic preservation, officer/director liability, and tax incentive policy. This will include working on regulatory and legislative matters and on dispute resolution (including insurance claims and defense) with Hickey Smith’s exceptional team of litigation lawyers.

In addition to joining the folks at Hickey Smith, I have also renewed my activity with NAIOP, Commercial Real Estate Development Association. This will include my serving as the instructor on “Environmental Tasks” for NAIOP’s 2017 Advanced Development Practices Course.

I encourage you to visit the Hickey Smith website, www.HickeySmith.com, to learn more about the firm and how it is “Engineered for Efficiency.” Please do not hesitate to contact me if you have any questions or comments. I would be delighted to tell you more about this exciting new opportunity for me and to explore whether there are any common paths down which we may be able to travel together.

You may recall that I had represented the National Post Office Collaborate in its litigation to compel the United States Postal Service to comply with the National Environmental Policy Act and the National Historic Preservation Act in its disposition of the Atlantic Station Stamford Post Office.  The Atlantic Station post office was constructed in 1916 and is listed on the National Registry of Historic Sites. The Collaborate was successful (through the efforts of my predecessor counsel and friend Hal Hughes) to obtain a preliminary injunction to prevent sale of the building.  See my earlier blog posting at http://blog.trill-envirolaw.com/2014/05/national-post-office-collaborate-et-al-v-patrick-r-donahue-et-al-oral-argument-opposition-motion-dismiss-public-trust-doctrine-claim/. Regrettably, however, after hearings on cross motions to dismiss and for summary judgment, the Court allowed the sale to move forward.  Notwithstanding this setback, the Capelli Organization of White Plains, NY, which purchased the building and adjoining properties to construct high rise office and residential towers, has proven to be a developer with a “historical preservation conscience.”

I have inserted below a few pictures I took on my cellphone camera at the September 17, 2016 public meeting held at the old Stamford Post Office to update the community on efforts by the Capelli Organization, to preserve the original 1916 building and its 1935 annex.

Stamford Post Office current lobby

The pictures do not do justice to several elements of the interior that will be preserved, such as the vaulted renaissance revival ceilings in the building lobby and the original bronze postal boxes, manufactured by Stamford’s own Yale and Towne, circa 1915. The 1935 annex is the location where Pitney Bowes perfected and first used its pioneering postage meter devices.

The meeting was moderated by Lynn Drobbin, chair of the Stamford Historic Preservation Advisory Commission who, in her introduction, referred to the Capelli Organization’s efforts as striving to preserve the original building and annex as well as many parts of the main building interior as a “living museum” that pays concrete– if not literal– tribute to the historic building and annex. Regrettably, while the Capelli efforts are much to be commended, there will be neither an actual museum nor an operational postal substation in the preserved building. Rather, while preserving open spaces and site lines the building interiors will apparently be put to use for retail and restaurant(s).

Historic Preservation Consultant Wes Haynes, who provided an expert witness affidavit on behalf of the National Post Office Collaborate in our lawsuit against the Postal Service seeking to require the agency to meet obligations under NEPA and NHPA before selling the building, made an interesting presentation about the history of the old post office building. The building was designed by Oscar Wenderoth who was the Supervising Architect of the Treasury Department and who also apparently designed both the Berkeley and Pasadena, CA post offices. The Neo-Renaissance design adopts themes from Palladio, particularly the 1537 Villa Rustica in Veneto, Italy. See pictures below of the Palladio building and a rendering of the Stamford Post office from the 1920s.

Note the tree on the portico—the building was designed “around” this and another tree just on the other side of the portico to preserve the natural history of the site, where at one time stood one of the grand houses of Stamford built in the 19^th century.  Two large concrete abutments on either side of the stairway to the portico were topped by huge lamps manufactured by Louis Tiffany and Company.

Judy Norisky of Stamford Historic Neighborhood Preservation stated that, as far as she could discover, Capelli’s commitment to building preservation (particularly its decision to preserve the 1935 annex) represents the first time that the developer of a historic post office has changed its placement of one of its buildings (here a multi-story residential tower) to preserve site lines of a historic building.  Capelli’s architect, Elena Kaiman, apparently has a specialty in restoration/preservation of historic buildings and discussed her vision of preserving and enhancing historic ornate friezes on inside walls of the main structure.  Lynn Drobin expressed a hope that the USPS would require the same principles of adaptive reuse sensitive to historic preservation to projects in the Bronx and at NYC’s James Farley Post Office.

View of the construction site (with 1935 annex at rear of building):

All-in-all, I was pleasantly surprised by the presentation w/re: the bottom line of preserving worthwhile historic buildings.  It reminded me that at no time was the Capelli Organization the focus of our objections to the sale of the Stamford Post Office; rather it was the obstinate refusal of the Postal Service to provide guarantees for such preservation.  It is a matter of serendipity that the Capelli Organization appears to be a responsible developer when it comes to such issues.

For questions about the Stamford Post Office matter or inquiries about how the Trilling Environmental Law Firm, LLC can be of assistance in either environmental or historic preservation matters, please do not hesitate to contact me.

Please visit my website www.Trill-EnviroLaw.com so that you can view and listen to my July 14, 2016 Power Point presentation to the Environmental Bankers Association. This PowerPoint presentation provides fundamental principles and guidance for participants in negotiations that involve the issues of environmental risk and liability. Although prepared for an audience that serves the lending industry, the advice provided can be applied in any commercial negotiating context.

As with the negotiation of any commercial subject, parties who negotiate agreements that involve environmental issues have bottom line financial goals that usually leave room for the parties to establish their respective ‘walk away’ positions. When those environmental negotiations also involve difficult to quantify or non-quantifiable issues, however, that monetary room for accommodation may not exist and the negotiator will need to be creative in finding alternatives to a monetary surplus. This presentation will guide the reader in helping to determine a “Rational Optimum Outcome” that will serve as a basis to set both “Anchor” and “Walk-Away” positions and it emphasizes the importance of recognizing that the duty of the negotiator is not to defeat the adversary but to win for his or her client.

Here’s a copy of the presentation’s conclusion:

• Know your business objectives and risk tolerance
• Establish your knowledge base: assess the potential liabilities
• Identify the Rational Optimum Outcome
• Define the Anchor position
• Walk away if you must
• Be creative in avoiding a walk-away by looking at mutually acceptable alternatives
• Recognize when you’ve won!

Please contact me if you have any questions or comments.

Industrial property owners who have contaminated properties they would like to take off their books, developers who are interested in acquiring and redeveloping those properties, and cities whose economies would gain from the restoration of contaminated industrial properties all might benefit from reading the article recently published by international environmental consulting firm Arcadis:   “Arcadis Urban Land Restoration Index—Ranking the Development Potential of Environmentally Impaired Land Across 27 U.S. Cities.”   Link to the article at:
https://www.arcadis.com/media/2/A/4/%7B2A4B47FE-3EE1-4B6F-B7D5-E097E6CB61A0%7DAG1004%20Restoration%20Index%20_Full%20Version_FINAL_ONLINE.pdf .
The 31 page article (NB: beware the small print!) provides a perhaps unnecessarily wordy, but nonetheless valuable overview of the economic potential for developing urban brownfield properties and presents a useful tool for owners and developers of those properties and the cities in which they are located.

In a nutshell, the article presents an Urban Land Restoration Index (ULRI) that rates the brownfield redevelopment potential of 27 American cities, based on differences in remediation cost, city dynamics, and property type (i.e., industrial, commercial, and residential).

I have taken the liberty of presenting a condensed and lightly edited version of the article below.  After reading this version or the entire article, if you have questions about the remediation and/or redevelopment a brownfield property, don’t hesitate to contact me here at Trill-EnviroLaw.

The Arcadis Urban Land Restoraton Index

The Urban Land Restoration Index (ULRI) combines insight on city dynamism and the relative
environmental clean up (remediation) costs in 27 cities across the U.S. to identify locations with the greatest opportunities for divestment, restoration, and development of impaired industrial property.

The two key elements behind the ULRI assessment are City Dynamism and the Cost of Cleanup, which when combined yield a unique parameter referred to as the restoration ‘sweet spot’. Industrial property owners and investors are well-advised to target property sale (divestment) and development in areas currently identified as having high potential – especially if remediation costs are relatively low on either a ‘one-off’ single site scenario or a portfolio basis. Typical remediation costs vary across a sample of U.S. cities by a factor of 2.5, meaning the cost of cleanup for an equivalent parcel of land with equal levels of contamination and targeted end use for development more than doubles between selected cities

Land, accessibility and resources are advantages the cities possess. Many urban environments are hosts to strategically located, underutilized properties. Much of this property is held in the legacy portfolios of industrial firms, primarily multi-national companies. Although many of these sites face environmental challenges, they nonetheless offer significant financial opportunity based on timely divestment, remediation, restoration and smart redevelopment.

In effect, the continuing renaissance of mid-sized cities may be creating unexpected pockets of
untapped value in the real estate portfolios of industrial land owners. By focusing on cities with the greatest potential and fewest barriers to restoration, it is possible to create outstanding sustainable and investment opportunities, while simultaneously creating a platform for industrial land owners to effectively divest environmentally impaired properties.

ULRI may be used as a tool to empower industrial land owners, developers, investors, and city
leaders to make informed, smart decisions by identifying cities with the greatest potential to create value:

• For the industrial property owner, the ULRI serves as a barometer, comparing relative remediation costs across 27 cities, and gauges the potential and attractiveness of cities for real estate investment, enabling owners to spot opportunities in their portfolio and helping to maximize the value of their properties.
• For the developer, the ULRI supports the allocation of resources within individual markets or across an investment portfolio, and provides a broad indication of the potential cost and return on redeveloping environmentally stressed properties, allowing for a weighted assessment of the attraction of properties and prioritization of opportunities for further viability analysis.
• For City leaders and planners, the ULRI provides a better understanding of the competitive position of a city and highlights the key factors critical for effective transformation of under-utilized industrial sites. ULRI developed a measure of city dynamism that combines several factors; a city’s attractiveness, growth potential, real estate performance, resilience and business environment.

The urban areas ranked in the top five for brownfields redevelopment of industrial properties are New York, Denver, Charlotte, Chicago, and Los Angeles.  The top five for commercial redevelopment comprise New York, Nashville, Charlotte, Pittsburgh, and Denver.  For residential redevelopment the top five list is Denver, New York, Nashville, Charlotte, and Atlanta.  Occupying the bottom of the overall index are Baltimore (#25), Phoenix (#26), and Detroit (#27).

April 21 is the New York City “Poem In Your Pocket Day,” the annual citywide celebration of National Poetry Month. Lee Ilan, Chief of Planning in the NYC Mayor’s Office of Environmental Remediation every year encourages folks who work on brownfields remediation and redevelopment to send her an appropriately themed entry. Here’s mine, entitled,

“The Brownfield Developer’s Lament” (or “Why Didn’t I Conduct a Phase I ESA?”)

In some dirty stinking soil
Racked with muck and dirty oil
My spade I thrust and hoped my toil
Would bring me profit, wealth, and spoil.

Alas I hadn’t checked the file
On prior uses, fines, or trial:
Such diligence to guard ‘gainst guile
To make an innnocent purchaser smile.

Now on the hook for more I’ll be
Cause no Phase I sought to see.
A sad site buyer in reality
Saddled with much liability.

“Legal Planet,” the environmental law and policy blog published by the law schools at UC Berkeley (my alma mater) and UCLA (legal-planet.org) on March 28, 2016, reports on a surprisingly positive environmental record from several cities in Texas, particularly with regard to sustainable energy use. See the article by Berkeley Law Professor Dan Farber, entitled “Deep in the Heart of Texas
Some green patches in one of the reddest of the Red States.” http://legal-planet.org/2016/03/28/deep-in-the-heart-of-texas/

The State of Connecticut has once again reaffirmed its role as a leader in the remediation and redevelopment of brownfield properties, by the actions of its U.S. Senator Chris Murphy and Representative Elizabeth Esty in having introduced  legislation that would restore incentives for developers seeking to reuse brownfield properties.   

The legislation (S. 2734, the Creating Livable Environments And New Usable Property Act,  https//www.govtrack.us/congress/bills/114s3734/text/is) deals with two incentive programs.

First, it would revive a tax deduction that expired in 2011 for commercial developers who invest in brownfield projects.  It would allow them to deduct the entirety of costs they incur for environmental cleanup of the property in the same year that the expenditure is incurred rather than being required to “capitalize” the expense and spread its recovery  over a five-year period.

Second, it would reauthorize brownfield tax credits for qualified nonprofit developers, allowing them to avoid paying unrelated business income taxes on earnings from the sale or exchange of certain properties in need of environmental cleanup. That tax credit expired in 2009.

The brownfield tax deduction that expired in 2011 was little used, inasmuch as most brownfield redevelopment projects do not create income in the same year that the expense is incurred and the law did not allow for the developer to carry over the expenses until the project showed income.  The proposed legislation similarly does not appear to provide for such a carry over, but nonetheless signals Congressional encouragement for brownfields development. The tax credit for not for profits should help dispel concerns that the income produced from their brownfield projects could result in tax consequences they would hope to avoid.

See article in the March 23, 2016 New Haven Register:  http://www.nhregister.com/business/20160323/murphy-esty-seek-to-revive-tax-credit-legislation-for-brownfield-cleanup,

.

See this article from the Huffington Post on the adverse environmental and health effects of using palm oil:  http://www.huffingtonpost.com.au/2016/03/23/palm-oil_n_9536668.html

See Reuters March 22, 2016 story on the USSC’s unanimous ruling overturning a Ninth Circuit Court of Appeals judgment that upheld US Park Service prohibition of hovercraft use in a non-federally owned “conservation area” in Alaska.http://www.reuters.com/article/us-usa-court-moose-idUSKCN0WO205