Knauf Shaw successfully represented the petitioner in Lighthouse Pointe Property Associates LLC (Lighthouse) v. New York State Department of Environmental Conservation (NYSDEC), the first case heard by the New York Court of Appeals on the issue of eligibility for the New York State Brownfield Cleanup Program (BCP). On February 18, 2010, the Court rendered a decision unanimously overturning the NYSDEC administrative decision denying the Lighthouse sites entry into the BCP, and ordering them into the program. Alan J. Knauf, of Knauf Shaw, argued the case in front of the Court of Appeals. NYSDEC was represented by Assistant Attorney General Denise Hartman. The following materials are available for download:
Supreme Court Decision
Appellate Division Decision Appellant's Brief Respondent's Brief Appellant's Reply Brief Record on Appeal BCP Application - Riverfront Site (included in Record) Volume I - BCP Application
Volume II - Environmental Site Assessment
Volume III - Detailed Environmental File Review & Data Gaps Analysis
Volume IV - Remedial Investigation ReportBCP Application - Inland Site (included in Record) Volume I - BCP Application Volume II - Environmental Site Assessment Volume III - Detailed Environmental File Review & Data Gaps Analysis Volume IV - Remedial Investigation Report Video of Oral ArgumentCourt of Appeals Decision
As shown on the concept site plan, Lighthouse seeks to remediate and redevelop a 47-acre site on the east side of the Genesee River into a vibrant, pedestrian-friendly and attractive $200 million mixed-use waterfront development including condominiums, townhouses, a marina, restaurants, retail stores, a hotel, a plaza for public gatherings and festivals, and a waterfront promenade for pedestrians and cyclists.
The site contains the former City of Rochester landfill (which is listed by NYSDEC Active Data Base of Hazardous Substance Waste Disposal Sites in New York), the former Town of Irondequoit sewage treatment plant, and was used for historic rail yard and marina operations, and for disposal of industrial waste and dredged river sediments.
The site is riddled with environmental contamination. Lighthouse's consultant, Conestoga-Rovers & Associates (CRA), has documented 612 Track 1 and 238 Track 2 restricted residential soil cleanup objective exceedances for 45 different BCP contaminants in 143 tests samples. Further, CRA found a total of 182 groundwater exceedances in 21 samples. The exceedances involved 57 different contaminants.
In 2002, when the New York State Department of Transportation (NYSDOT) removed the Stutson Street Bridge and constructed the new O'Rorke Bridge, 3,400 tons of soil were excavated, and six soil samples from the excavated materials were likewise found to be a "characteristic" hazardous waste due to toxicity, but NYSDEC authorized their disposal – in apparent violation of the federal Resource Conservation and Recovery Act (RCRA) - under one foot of cover on the site. As a result, Lighthouse has served a RCRA citizen's suit notice on NYSDOT. Without remedial measures, the future construction of buildings may have indoor air problems, and recent sampling in residential houses located adjacent to the site, but still located on the landfill, has confirmed the presence of explosive methane, and a cocktail of other hazardous chemicals.
The Monroe County Department of Public Health has refused to issue permits due to concerns over toxic vapors and leachate and related health risks. While the Department of Health recognized that "it may be possible to develop the site in a way that will be protective of human health," it recognized that "the only way to accomplish this is for the developer to participate in the... Brownfield Cleanup Program."
Unfortunately, NYSDEC refused to let the sites into the BCP, and they will finally enter four years after they should have been admitted. Through the BCP, the sites can be remediated, culminating in a certificate of completion, which would result in a liability release and significant tax credits. Without the BCP, the project cannot get permits or financing, and is not economically feasible.
The Lighthouse project would be the largest waterfront project ever developed in the Rochester area. The project, which is expected to have significant out-of-state investment, would create jobs, a new waterfront destination and public esplanade, and new places for people to live on the waterfront. It will significantly enhance the efforts to redevelop the Port of Rochester, and take advantage of the community's location on Lake Ontario.