NYSBA SPRING 2009 | VOL. 29 | NO. 2 The New York Environmental Lawyer A publication of the Environmental Law Section of the New York State Bar Association Message from the Chair Greetings from Albany as we ✔ revamped the Section Journal, which will debut in approach summer! I hope that this 2009-10; message conveys the gratitude that ✔ instituted a “Track B” program for newer attor- I feel toward the many people in neys at the 2009 Fall Meeting; the Section who helped to achieve what can only be termed as an ex- ✔ created guidelines for written materials for tremely successful Section year. Section programs—which reduces paper and pro- motes sustainability; 2008-09 Section ✔ hosted renown physicist Dr. James Hansen to Accomplishments speak at Annual Meeting Climate Change pro- gram; If you will allow me to toot the Section’s horn for a moment, here Joan Leary Matthews ✔ co-sponsored the NYSBA Task Force on Global is a list of the many accomplish- Warming and provided signifi cant support for ments that together we achieved: the Task Force’s work in Albany; ✔ established a blog; ✔ engaged in signifi cant outreach for new members; ✔ established the Classroom Project; ✔ offered law students Section benefi ts, including free membership and registration at programs; ✔ began a Section webinar series; ✔ commented on key legislation—Bottle Bill and ✔ partnered with the International Section to SEQRA Standing; present additional webinars; (continued on p. 4)
Inside From the Editor ...... 2 Tribute to Dorothy Miner (Kevin Anthony Reilly) Dorothy Miner Defended Our Architectual Heritage ...... 24 Historic Preservation (Philip Weinberg) Historic Preservation Law 101 for New York Lawyers ...... 5 Dorothy Miner Award ...... 25 (Christopher Rizzo) (Leonard Koerner) Two Recent Cases Highlight Concerns About the Dorothy Miner Obituary ...... 26 New York City Landmarks Preservation Commission’s (David W. Dunlap) Management of the Designation Process ...... 13 (Susan M. Stern) Clean and Green: Remediating Contaminated Sites More Sustainably ...... 27 Landmarks and Sustainability ...... 17 (Walter Mugdan) (John Weiss) Recent Decisions in Environmental Law ...... 33 Historic Preservation at a Crossroads: The 2009–2013 New York State Historic Preservation Plan...... 20 (Amy E. Facca) From the Editor
The present issue features draws our attention to those ideas and experiences, some Historic Preservation, an area uniquely American, but many of older vintage and with that too often seems marginal wider cultural resonances. When we sacrifi ce that which to environmental law and is un- we can see, feel and physically experience, we risk los- derappreciated as an important ing sight of the less tangible components of who we are component of public policy. I which, in the forward rush of everyday life, may become am suffi ciently old-school to be as spectral as yesterday’s myths. convinced of the centrality of the I would like to thank Chris Rizzo, of Carter Ledyard humanities, generally, and espe- & Millburn, who gathered the articles in this issue that cially history, to our cohesion as a address Historic Preservation. Chris authored an article society. Even if historical themes that provides a primer on Historic Preservation Law in and lessons remain relatively Kevin Anthony Reilly New York. The article starts with an overview of the rel- unarticulated in our modern me- evant federal law, then digs into an excellent exposition dia culture, I deeply believe it to be a fact that the web of of New York State preservation law and New York City’s historical associations provides the fi laments that hold us Landmarks Law. Chris’s article not only interweaves the together, providing an underlying strength and—if care- several statutory structures but also discusses illustra- fully examined—an orderly way of understanding and tive case law, before fi nally marching the reader forward explaining ourselves. into history with projections of where preservation ef- Certainly, history as a discipline incorporates more forts seem to be heading. As always in life, tax credits tensions that it did a half century ago. Scholars reach may prompt behavior where other efforts fail, and Chris for more subtle explanations of events and social issues, discusses the tax ramifi cations of some preservation en- people and groups are being analyzed who in the past deavors. fell beneath the proverbial radar screen of traditional nar- Susan Stern, an architect who is also a newly minted rative history, and the net of causation and explanations lawyer, focuses her article on the New York City Land- gathers information and data that generate new and even marks Law. Susan examines two recent cases that turned controversial ways of looking at people and events. If the on procedural considerations which, as employed by the fi eld of history is more contentious, though, it also is that Landmarks Preservation Commission, seemed to un- much richer. It follows that Historic Preservation, some- dermine the protection of New York City’s cultural and times defi ned as preservation of the built environment, historical resources. John Weiss, Deputy General Counsel should also take on newer and deeper meaning. Its im- of the Landmarks Preservation Commission, explains the portance lies not in cultural fetishes nor only as a means LPC permitting process, then addresses his article to the to enshrine staid exhibits, but as a means to bring into the sustainability aspects of preservation, notably where pres- immediacy of the present the ideas, sensations, thoughts ervation efforts intersect with energy conservation. Final- and dreams that animated prior generations, and which ly, Amy Facca, Preservation Planner at New York State’s welded together diverse peoples and cultures and built Offi ce of Parks, Recreation and Historic Preservation, a unique polity. History, and its motivating ideas and concludes by analyzing Historic Preservation at a Cross- experiences, can be better appreciated when its artifacts roads, the 2009-2013 New York State Historic Preservation and cultural reference points can be looked at, felt, and Plan. Amy’s discussion, and the underlying document, pondered. both broaden and deepen how we view preservation as However, just as historical studies sometimes get rel- an ideal, and she analyzes how preservation should be egated within academia to the ideological margins, and implemented operationally in a far more comprehensive within our culture historical persons and events survive manner. The article provides guidance as we grapple with too often as caricature, so, too, Historic Preservation is be- how to understand and preserve the past, in the future. ing drained of its richer possibilities. When the planning It is sad, but strangely coincidental, that my pre- for historical structures, monuments and locations is con- liminary discussions with Chris about this issue of this sidered, it seems that the choice comes down to Disneyfy- journal occurred in the wake of Dorothy Miner’s passing. ing our past or, alternatively, bulldozing it to make way Dorothy, from her perch in the New York City Landmarks for the glittering baubles proudly displayed by America’s Preservation Commission, and at Columbia University, truly impressive commercial dynamo. As Henry Adams was an early voice—some suggest she was a force of presciently observed a little more than a century ago, nature—for Historic Preservation, which she pursued that dynamo inevitably consumes our past and with it over the years with an ethos and a zeal that can best be our deeper sense of a national identity that, in its bet- described as an intellectual crusade, in the best sense. ter expression, is linked to formative ideas and experi- Her voice strengthened as the public’s appreciation for ences. Historic Preservation, then, also has value when it
2 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 the monuments of its past ripened during the 1960s and The Peter A. Berle Environmental Integrity Award 1970s, and she provided backbone for preservation efforts was recently established by the Century Foundation in as political leaders championed real estate development New York City, in cooperation with the National Audu- in later decades. In recent years, Dorothy was affi liated bon Society, the Natural Resources Defense Council, the with Nick Robinson’s bailiwick in Pace University’s En- Environmental Defense Fund, our Environmental Law vironmental Law program. A memorial service was held Section, and friends of Peter Berle. Lou Alexander was recently at Columbia University which was well attended the Section’s representative on the Award Selection Com- by many people involved with preservation efforts, pro- mittee. Steve Kass, Peter Berle’s former partner, was cen- fessionally as well as locally, and several Section mem- trally involved in creating the award and in developing bers. The service was followed by a reception at the near- the selection process. The inaugural award was jointly by Cathedral of St. John the Divine. The New York Times presented on May 3 to the eminent climate scientist James wrote an obituary which is re-published in this issue. E. Hansen, director of the NASA Goddard Institute for Among Dorothy’s “landmark” achievements, so to speak, Space Studies, and David Foster, executive director of the was the preservation of Grand Central Station, which re- Blue Green Alliance. The recipients’ remarks underscored sulted in the “landmark” (I know—but the term actually not only the need for an enhanced attention to climate matters!) Penn Central decision that became the template issues, but also the strategic importance of including in- for modern Historic Preservation Law. Phil Weinberg, dustry actors—especially labor in a decidedly constricted whose involvement with the case arose from his position employment market—in solving our several environmen- with the New York State Attorney General, writes a fond tal problems. remembrance, as does Leonard Koerner, presently Ap- peals Chief at the New York City Law Department, who Walter Mugdan, the Director of Emergency and Re- worked with Dorothy in that monumental (another fi gure medial Response in EPA Region 2, but also well known of speech that can’t be helped) litigation. to our readers, adds to his lengthy list of contributions to this Journal over the years with an article on Green Historic Preservation aside, Section members have Remediation. While one may reasonably assume that been contributing to the again-growing chorus of spe- remediation is innately green, that assumption is pre- cialists and citizens alike who are becoming re-engaged mised on what is being cleaned up—contamination—and on matters of climate preservation. As I noted in my misses how the cleanup is conducted. The contemporary last column, it is like a breath of fresh air when political concern for energy frugality insists that, as with so many leaders, industry spokesmen, concerned citizens, and so other processes, we conduct remediation in more energy- many others are talking to one another rather than past effi cient manners. Walter’s article analyzes how energy one another—or, worse, ignoring one another—on the is usually consumed in cleanups, and he suggests several intertwined themes of global climate change and national alternatives that, in the aggregate, can signifi cantly reduce security, both of which will benefi t by the development remediation’s carbon footprint. The article offers sage and of alternative energy sources. Finally, there is an intel- especially timely advice from a leading expert in the fi eld ligent and thoughtful national conversation on how to of remediation. address climate change—mitigating it where possible, understanding its realistic ramifi cations, and preparing Nadya Kramerova, the Student Editor, submits case for the anticipated and unanticipated social, economic summaries from members of the Environmental Law and even geographic disruptions. Michael Gerrard’s ex- Society at St. John’s Law School. Phil Weinberg assumed citing career change was noted in my last column. Kevin overall supervisory responsibility for student submissions Healy recently moderated a well-attended program at the for many years. Phil essentially initiated environmental Association of the Bar of the City of New York, chaired law studies at St. John’s Law School and served as the fac- by Peter Garam of Con Edison, that examined the actions ulty advisor for the Environmental Law Society, which he being taken by federal, state and local offi cials. The dis- was instrumental in creating. It is no small irony that I am Journal cussion included additional inquiries into what measures leaving my responsibilities as editor as Phil, who are actually achievable politically, the strategies being em- originally offered this opportunity to me, is retiring from ployed to wring the best outcome from pending bills in St. John’s. I anticipate that after a bit of travel, Phil will be Congress, and enterprising measures by New York State starting a third career. and New York City to both generate and conserve energy, The Environmental Law Section lost another friend many of which still face structural and logistical chal- and prominent member lately with the passing of Bill Fa- lenges. Roger Martella, former General Counsel of EPA, hey. Bill was an early Section Chair, and, with Phil Wein- William Bumpers of Baker Botts, who was knowledgeable berg, co-chaired the Section’s Transportation Committee about bills currently passing through Congressional com- for many years. Actually, Phil and Bill basically were mittees, Paul DeCotis, New York State Deputy Secretary the Transportation Committee. Bill will be remembered, for Energy, and James Gallagher, senior vice president for fondly, for his sunny personality and an ever-present Energy Policy at New York City’s Economic Development smile, a quick and gentle wit, and as an engaging conver- Corporation, also participated. sationalist. I usually sat with Bill, because I enjoyed his
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 3 personality so much, at the luncheon following the Sec- to keep me in touch with developments in New York En- tion’s Legislative Forum each year. There will always be vironmental Law. It is not undue fl attery to observe that an empty seat, fi guratively speaking, at future luncheons, the Environmental Law Section has benefi ted from the and I know that many of Bill’s old friends, who created membership and contributions of New York’s leading en- and developed the Environmental Law Section with him, vironmental lawyers, and the Journal similarly benefi ted. will miss him. It proved to be an excellent linkage to what I consider to be one of the most fascinating areas of law, developed by I do not want to end this column, and my tenure as some of law’s most interesting people. I welcome Miriam editor, on a sad note. So, I will part by mentioning how Villani to the editorship, and hope that she will be the re- much enjoyment I’ve had putting together this publica- cipient of as much generosity as was I over the years, and tion for more years than I care to remember. During my will enjoy the task in equal measure. I also congratulate Journal time as editor, the has been a means by which I Alan Knauf, our incoming Chair, and Joan Leary Mat- could stay in touch with the many people I would see at thews, who is cheerfully awaiting emeritus status. Section meetings and elsewhere, many of whom I could politely (I hope) prod into contributing articles, and Kevin Anthony Reilly whose company I came to enjoy so much over the years at meetings and weekend retreats. The Journal also served
Message from the Chair (continued from p. 1)
✔ ensured that the Section’s programs featured a Diversity of Ideas diverse set of speakers. The Section adopted a Diversity Plan a number of years ago. Not only were we intending to change the Legislative Forum demographics of the Section—based on age, geography, gender, race, ethnicity, etc.—we were also hoping to add The Legislative Forum held in Albany on May 6 was diversity of ideas. With that diversity, attorneys who also highly successful. This year’s program was entitled would not ordinarily see themselves as NYSBA or Sec- “New Possibilities: Environmental Legislative Initiatives tion members might just be intrigued by the variety and for 2009.” I know that later events have clouded whatever breadth of work that we accomplish in the Section. Our hopes existed to break the legislative stalemate of prior intent is to be all inclusive—please let us know how we years and advance meaningful environmental legislation. are doing, and how we can improve. Nonetheless, we appreciated the fi ne work of the Legisla- tion Committee—Terresa Bakner, Michael Lesser, and Jeff Brown—to put together an informative program, which A New Year featured Sen. Antoine Thompson, Stephen Liss, Esq. from Please join me in wishing the new Section Chair, Alan Assemblyman Robert Sweeney’s offi ce, David Gahl Knauf, and the Section Cabinet a very successful 2009-10. from Environmental Advocates, Ken Pokalsky from Alan, his Program Co-chairs, and our colleagues in the The Business Council of NYS, and Anne Reynolds from Municipal Law Section have been planning an informa- the NYS DEC. tive, fun-fi lled Fall Meeting in Canandaigua, in the Finger After the Forum, many participants stayed for the Lakes Region. We hope to see you there! annual luncheon, attended by a number of government Thank you for your interest, enthusiasm, and support attorneys from a variety of State agencies. We thank Kim- for the Section’s activities this past year! It was truly my berly Harriman, Esq. from the Department of Public Ser- pleasure to serve as Section Chair. vice for her entertaining and informative presentation on the energy provisions of the American Recovery and Re- Joan Leary Matthews investment Act (ARRA), which President Obama signed into law in February 2009.
4 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 HISTORIC PRESERVATION Historic Preservation Law 101 for New York Lawyers By Christopher Rizzo
A. Introduction coordinate with federal agencies.4 Amy Facca of the New Preservation law is one of the least-known but most York State Historic Preservation Offi ce discusses New important components of environmental law, govern- York’s latest plan in her article. ing and protecting the built environment that millions of Third, NHPA requires federal agencies to protect his- New Yorkers enjoy each day. Preserved and restored main toric properties that are within their ownership or control streets, historic districts and landmark sites generate mil- (often referred to as Section 110 of NHPA).5 lions of dollars in tourism revenue each year in places like Cooperstown, Saratoga Springs, Cold Spring and Green- wich Village in New York City. “Preservation law is one of the least- The nation’s principal preservation laws also predate known but most important components most other environmental laws. Congress enacted major of environmental law, governing and protections for historic resources in 1966 and New York protecting the built environment that City passed its Landmarks Law in 1965, a full decade be- millions of New Yorkers enjoy each day.” fore many other major federal environmental laws. This special edition of the New York State Bar Association’s New York Environmental Lawyer therefore aims to recon- Fourth, NHPA creates a federal agency, the Advisory nect attorneys with this critical component our environ- Council on Historic Preservation (ACHP)—arguably the mental legal system. This article provides a very brief least-known federal agency—to oversee the law’s imple- overview of major preservation laws, constitutional issues mentation.6 The ACHP has created an extremely useful and hot topics in the fi eld. guide to NHPA and court decisions interpreting the law, An Overview of Federal Historic Preservation Case Law, 1966- B. Federal Historic Preservation Law 1996 and Federal Historic Preservation Case Law Update, 7 The three most signifi cant federal historic preserva- 1996-2000. tion laws are the National Historic Preservation Act of The most important component of NHPA is, however, 1966 (NHPA), Section 4(f) of the Department of Trans- its creation of the “Section 106” consultation process. portation Act of 1966 (“Section 4(f)”) and the National Federal agencies must consider the effect of their under- Environmental Policy Act (NEPA). There are numerous takings on historic properties that are listed on, or eligible other federal preservation laws, but they apply in much for, the National Register of Historic Places.8 This evalua- more limited circumstances (e.g., Native American sites tion process is generally coordinated with environmental 1 or shipwrecks). impact review under NEPA, but each federal agency 1. National Historic Preservation Act of 1966 tends to have a different style for its consultation. Section 106 applies broadly to all direct federal actions, such as NHPA is the most signifi cant federal historic preser- road construction, wetlands permits and funding by the vation law because it applies to all federal agencies and Department of Housing and Urban Development. most actions that impact historic resources. The law has several key components. The fi rst step in the Section 106 process is the federal agency’s determination of whether the undertaking has First, NHPA expands the U.S. Department of Inte- the potential to have effects on historic resources, which rior’s role in maintaining a “national register of historic include both National Register-listed and eligible proper- places” that includes properties that are signifi cant in ties. If there is no potential for effects, the federal agency’s 2 American history, architecture, engineering or culture. duties are complete.9 If there is a potential for effects, Eligible properties must be associated with important federal agencies must consult with the local State Historic events, persons, architectural styles or historic periods Preservation Offi cer, impacted municipalities, any im- 3 and be more than 50 years old. Buildings or sites on or pacted Native American groups and project applicants to eligible for the register are the focus of reviews under identify historic properties10 and assess the effects. When NHPA, NEPA and Section 4(f). there are potential adverse effects, federal agencies usu- Second, NHPA encourages states to designate a “state ally work with the consulting parties to eliminate or ame- historic preservation offi cer” to implement NHPA, pre- liorate them through a “memorandum of agreement” or 11 pare statewide historic preservation plans and otherwise “programmatic agreement.” But Section 106, like NEPA,
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 5 HISTORIC PRESERVATION dictates procedures rather than results. Federal agencies alternative. Like NHPA review, this review pro- can therefore choose to terminate consultation and pro- cess is procedural only and agencies can decide to ceed with an undertaking even if it has adverse effects.12 proceed with a project that has signifi cant impacts. In practice, this result is unusual and disfavored. But most practitioners credit the law with discour- aging agencies from proceeding with many genu- While NHPA encourages federal agencies to coor- inely harmful actions. dinate Section 106 review with NEPA review, discussed below, it is important to keep in mind that the standards 3. Section 4(f) of the Department of Transportation for triggering further analyses under these laws are dif- Act of 1966, 49 U.S.C. § 303(b) ferent. NEPA applies to “major federal actions,”13 while Although Section 4(f) applies only to actions of the NHPA applies to federal “undertakings.”14 Removal of a U.S. Department of Transportation and its subsidiaries historic slate roof from a building, for example, may not like the Federal Aviation Administration, its requirements trigger NEPA but could trigger NHPA. Further, under are more substantive than those of NHPA and NEPA. The NEPA, federal agencies are required to prepare an envi- agency may approve a transportation project that requires ronmental impact statement only if the action may have use of publicly owned lands, parks, recreation areas, “signifi cant adverse impacts.”15 Under NHPA, a federal wildlife refuges or historic sites only if “there is no pru- agency must consult if there are any adverse effects, even dent and feasible alternative to using that land” and “the if they are not signifi cant from a NEPA perspective. As program or project includes all possible planning to mini- NHPA regulations state: a “fi nding of adverse effect on a mize harm.”19 As under NHPA, in theory the Department historic property does not necessarily require an EIS un- of Transportation can proceed with a harmful action after der NEPA.”16 complying with Section 4(f)’s procedural requirements 2. National Environmental Policy Act and making agency fi ndings about impacts and alterna- tives. But in practice the requirement to demonstrate that As noted above, NEPA requires all federal agencies there are no viable alternatives to using protected open to consider the impacts of “major federal actions” on the space or historic sites often makes it impossible to pro- environment. The law defi nes “impacts” to include im- ceed with a harmful action. pacts on historic resources,17 including historic buildings, important view sheds, Native American sites and archeol- The seminal case on point is Citizens to Preserve Over- ogy. ton Park v. Volpe, which involved the Department of Trans- portation’s plans to construct a six-lane highway exten- NEPA review can proceed in one of three basic ways: sion through a public park in Memphis.20 In Overton the 1. A federal agency may determine that an action is Department of Transportation argued to the U.S. Supreme ministerial (i.e., no agency discretion), is subject to Court that the agency could consider cost, effi ciency of a specifi c regulatory exception or otherwise does route, safety and other non-environmental matters in de- not trigger NEPA. In these circumstances the agen- termining whether no feasible and prudent alternatives cy has no further duties. existed. Justice Thurgood Marshall dismissed this agency defense, holding that “if Congress intended all these 2. A federal agency may determine that, although factors to be on equal footing with preservation of park- NEPA applies, the action will not have any sig- land there would have been no need for the statutes.”21 nifi cant adverse impacts. In that circumstance, the The Court then held that, although routing the highway agency prepares a short environmental assessment around the park would be more costly and less direct, it and issues a fi nding of no signifi cant impact, com- was potentially a prudent and feasible alternative. This monly referred to as a “FONSI.” reasoning applies equally to Section 4(f)’s protection on 3. Finally, if a federal agency determines that the historic properties. action may signifi cantly affect the quality of the C. New York State Historic Preservation Law human environment,18 it must prepare an envi- ronmental impact statement, which generally 1. State Historic Preservation Act takes months to complete and requires substantial New York’s State Historic Preservation Act, or SHPA, public participation. The process concludes with is similar to NHPA. It requires all state agencies to con- a fi nal environmental impact statement and the sider the impact of their actions on historic resources, agency’s adoption of a record of decision that which include properties listed as eligible for the State memorializes the signifi cant impacts, addresses or National Registers of Historic Places. It also requires ways to minimize signifi cant impacts, identifi es agencies to consult with staff of New York’s SHPO.22 The alternatives to the action and selects the preferred act states:
6 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 HISTORIC PRESERVATION
As early in the planning process as may impact in any of these categories, SEQRA requires the be practicable and prior to [fi nal ap- agency to prepare an environmental impact statement.27 proval] the agency’s preservation offi cer The regulations state: “SEQRA requires that all agencies shall give notice, with suffi cient docu- determine whether the actions they directly undertake, mentation, to and consult with the [State fund or approve may have a signifi cant impact on the Historic Presidential Offi cer] concerning environment, and, if it is determined that the action may the impact of the project if it appears have a signifi cant adverse impact, prepare or request an that any aspect of the project may or will environmental impact statement.”28 cause any change, benefi cial or adverse, Like NEPA, SEQRA is a procedural statute only. But in the quality of any historic, architec- the public disclosure involved in environmental review tural, archeological, or cultural property tends to steer agencies away from patently harmful ac- that is listed on the national register of tions. historic places or property listed on the state register or is determined to be eli- Notably, review and permitting decisions by local gible for listing on the state register by landmark agencies are not likely to be considered “ac- the commissioner. tions” for SEQRA purposes. The regulations exclude at least two kinds of landmark actions from the law’s pur- Generally, adverse impacts occur under view. These include “designation of local landmarks or conditions which include but are not their inclusion within historic districts” and “offi cial acts limited to (a) destruction or alteration of a ministerial nature involving no exercise of discre- of all or part of a property; (b) isolation tion, including building permits and historic preservation or alteration of its surrounding environ- permits where issuance is predicated solely on the ap- ment; (c) introduction of visual, audible, plicant’s compliance or noncompliance with the relevant or atmospheric elements that are out of local building or preservation code(s).”29 character with the property or alter its setting; or (d) neglect of property result- The second exception has been the source of some ing in its deterioration or destruction. confl ict in the preservation community. In Citineighbors Coalition of Historic Carnegie Hill v. New York City Land- Every agency shall fully explore all marks Preservation Commission,30 the Appellate Division, feasible and prudent alternatives and First Department, held that the Commission’s decisions give due consideration to feasible and are not subject to SEQRA. It reasoned that the Commis- prudent plans which avoid or mitigate sion’s review is circumscribed by a narrow set of criteria adverse impacts on such property.23 that allows consideration of only historic and aesthetic is- SHPA does not apply to projects that are already subject sues, which would make environmental review pointless. to the more extensive consultation requirements of The court stated: Section 106.24 Nor does SHPA require the extensive or formal consultation that Section 106 requires. Where, as here, an agency has some discretion, but that discretion is circum- Unlike Section 106, SHPA has been the subject of scribed by a narrow set of criteria which little litigation. This is probably due to the lack of third- do not bear any relationship to the envi- party consultation, which often makes Section 106 quite ronmental concerns that may be raised contentious, and the fact that state agencies and the in an EIS, its decisions will not be consid- SHPO almost always try to reach an amicable resolution ered “actions” for purposes of SEQRA’s of impacts. EIS requirements. . . . The Commission’s determination with respect to [an] ap- 2. State Environmental Quality Review Act; the plication, limited to the appropriateness Citineighbors Case of the proposed building’s exterior archi- In practice, evaluation of impacts under SHPA is tectural features and narrowly circum- folded into review under the State Environmental Qual- scribed by the architectural, aesthetic, his- ity Review Act (SEQRA). Like its federal counterpart, torical and other criteria specifi cally set SEQRA requires all state agencies, counties and mu- forth in the Landmarks Preservation Law, nicipalities to consider the impacts of their “actions” on was “ministerial” for SEQRA purposes. historic resources25 and numerous other aspects of the The decision left some SEQRA lawyers uneasy, fearful environment (air, natural resources, traffi c, etc.).26 If the that other agencies with limited jurisdictions might make agency determines that the action may have a signifi cant the same argument.
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 7 HISTORIC PRESERVATION
3. Listing on the State and National Registers of effect” for work that requires a building permit but would Historic Places otherwise not impact the regulated features of the land- 37 The criteria for listing on the State Register of Historic mark. The staff can also issue a “minor work permit” for Places are similar to those for the National Register.31 work that is not subject to a building permit and would Properties that are listed on the National Register are have a negligible impact on the protected features of a 38 automatically included on the State Register. Properties landmark. can also be nominated to the State Register directly. The Substantive work on landmarks, including buildings key difference between the two listings is that “[t]hose within historic districts, requires a “Certifi cate of Appro- regulations which prohibit listing on the National Regis- priateness.” The Commission must consider: ter when property owners object shall not apply to nomi- nations for the State Register.”32 Additionally, the State (a) the effect of the proposed work in Register contains a stronger exception to permit listing of creating, changing, destroying or affect- properties that have attained signifi cance with the past ing the exterior architectural features of 50 years and are of “exceptional importance.”33 The most the improvement upon which such work prominent example of a “young” State Register site is the is to be done, and (b) the relationship World Trade Center, which the State Historic Preservation between the results of such work and the Offi cer determined to be eligible following the events of exterior architectural features of other, September 11, 2009. neighboring improvements in such dis- trict.39 D. Local Historic Preservation Law The Commission’s review is limited to the aesthetic New York City created its Landmarks Law in 1965 qualities of the proposal, including “aesthetic, historical and has since designated over 1,000 individual landmarks and architectural values and signifi cance, architectural and 80 historic districts. The designation process has style, design, arrangement, texture, material and color.”40 ebbed and fl owed somewhat over the law’s four-decade The Commission is specifi cally barred from considering existence. Recently, the city has increased its attention to zoning issues such as height, rear yard requirements, landmarks and districts outside of Manhattan. The law is open space, etc.41 examined here as a good of a local preservation law, al- though certainly not a “typical” one. The Landmarks Law and New York City Zoning Res- olution provide owners of landmarks with several special The Landmarks Law created the Commission, which forms of relief, which have probably helped the law with- consists of 11 members, including at least one architect, stand a number of legal challenges. The Commission it- 34 planner, realtor and representative of each borough. The self can authorize two special forms of hardship relief for commissioners, besides the chair, are unsalaried. They tax-exempt landmark sites and one for taxable landmark oversee the designation process for new landmarks and sites.42 The City Planning Commission can grant a special review of applications to alter existing landmarks. They permit to owners of landmark sites to alter use or bulk also less frequently address enforcement, penalty and regulations (except fl oor area ratio) to further a preserva- hardship matters. tion purpose.43 Owners sometimes use this special permit As Susan Stern discusses in her article for this journal, to develop a for-profi t use that generates funds for the the designation process is largely undefi ned by city regu- restoration and maintenance of a landmark that shares lations.35 The Commission can designate individual land- the lot. The City Planning Commission can also grant a marks (whether publicly or privately owned), historic special permit to allow sale of development rights from a districts (which effectively imposes landmark status on landmark site to adjacent lots or across the street, another all lots within the district), interior landmarks (rare and way to generate revenue from a landmark site while pre- 44 only when there is existing public access, like Grand Cen- serving the landmark. tral Terminal) and scenic districts (governing city-owned E. Constitutional Issues properties, such as Central Park).36 Historic preservation laws are challenged on consti- Owners of landmarks can generally alter their prop- tutional grounds from time to time, often based on an al- erties without the Commission’s approval if the change leged regulatory taking, violation of free speech, interference would not require a permit from the Department of Build- with religious freedom or unconstitutional vagueness. These ings, would not be visible from a public thoroughfare and challenges usually take aim at local preservation laws, would not impact a regulated feature of the landmark. which are more likely than federal or state preservation But it is always wise to consult with the Commission’s laws to substantively regulate use of historic properties. staff if there is any question about the necessary approv- als. The Commission’s staff can issue a “certifi cate of no
8 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 HISTORIC PRESERVATION
For the most part, local preservation laws fare relatively and is distinctly modern, particularly in comparison with well in these challenges. the 19th Century buildings that dominate the landmark district. The seminal case on regulatory takings is Penn Cen- tral Transportation Co. v. City of New York, which involved The court held that content-neutral landmark laws an application by the owner of Grand Central Terminal are subject to “intermediate scrutiny” with regard to their to construct a 50-story high-rise above the landmark impact on speech and upheld the Landmarks Law under building.45 The city’s Landmark Preservation Commis- that analysis.50 Moreover, the court found that the Land- sion denied the owner’s application for a certifi cate of marks Preservation Commission’s requirement that ar- appropriateness, stating: tistic features of landmarks be preserved did not amount to “compelled speech,” which the First Amendment also [We have] no fi xed rule against making prohibits. The decision has major repercussions for all his- additions to designated buildings—it all toric preservation laws because many landmark buildings depends on how they are done. . . . But include artistic features such as statues, gargoyles, murals to balance a 55-story offi ce tower above or other artistic details. A decision that was adverse to the a fl amboyant Beaux-Arts façade seems city potentially would have allowed thousands of build- nothing more than an aesthetic joke. ings owners to sheer off artistic elements of their land- Quite simply, the tower would over- marks in the name of free speech. whelm the Terminal by its sheer mass.46 Other challenges to landmark laws have been based The owner immediately challenged the denial in state on the First Amendment’s protection of religious worship. courts, arguing that the permit denial was a regulatory Until 2000, the seminal case governing historic preserva- taking in violation of the Fifth and Fourteenth Amend- tion laws and religion was the U.S. Supreme Court’s deci- ments to the U.S. Constitution and a violation of due sion in Employment Division v. Smith.51 The case involved process protected by the Fourteenth Amendment. The Oregon’s dismissal of two employees for their use of New York Court of Appeals ultimately denied the peyote, a plant-derived drug that is used by some Native challenges and the owner appealed to the U.S. Supreme Americans in religious worship. The discharged employ- Court. ees challenged the state’s anti-drug laws and argued that The U.S. Supreme Court began its analysis by recog- they should be subject to “strict scrutiny” analysis to the nizing that its prior decisions have upheld the authority extent that the laws extended to religious-related drug of states to regulate land uses to promote “health, safety, use. The Court, in an opinion by Justice Scalia, vigorously morals, or general welfare” even if such regulations disagreed and held that content-neutral laws of general adversely affect property values.47 It then rejected Penn applicability are subject only to the “rational basis” analy- Central’s contention that any diminishment in value be- sis. Smith set the standard for land-use and preservation cause of land-use regulations should be compensable. In- laws and their impact on religious buildings. stead the Court held that, because the City’s application Congress’s enactment of the Religious Land Use and of the Landmarks Law did not interfere with the primary Institutionalized Persons Act (RLUIPA) in 2000 dramati- expectation of use of the Terminal or deny the owner a cally changed the analysis. RLUIPA will, arguably, make reasonable economic return, Penn Central had not estab- it more diffi cult for preservation laws to regulate religious lished a regulatory taking.48 This ruling underscores the institutions, although there is still no consensus on this importance of having mechanisms in local laws to relieve point.52 genuine economic hardship imposed by landmark laws and zoning. The law has three key provisions that relate to land use. First, RLUIPA subjects land-use laws that place a In 2004, a federal court turned down a major chal- “substantial burden” on religious worship to strict scru- Board of Managers of Soho International Arts Con- lenge— tiny even if they are content-neutral. The law states: dominium v. City of New York—to New York City’s Land- mark Law that was based on the First Amendment’s No government shall impose or imple- protection of free speech.49 The owner of a condominium ment a land use regulation in a manner building objected to the Landmark Preservation Com- that imposes a substantial burden on the mission’s refusal to allow removal of a renowned mod- religious exercise of a person, including a ern art sculpture on the building’s northern wall, com- religious assembly or institution, unless monly referred to as “The Wall.” (The prior owner had the government demonstrates that impo- consented to the artist’s installation of the artwork.) The sition of the burden on that person, as- sculpture was installed after designation of the Soho Cast sembly or institution (A) is in furtherance Iron Historic District in which the building is located of a compelling governmental interest;
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 9 HISTORIC PRESERVATION
and (B) is the least restrictive means of “uniqueness,” etc., and concluded that the plaintiffs had furthering that compelling governmental adequately alleged a violation of their due process rights, interest.53 thereby reversing the trial court’s dismissal of the case.59 Chicago will almost certainly appeal the decision to Il- This clause dramatically alters the playing fi eld and the linois’s top court, but it has already led some municipali- standard set forth in Smith. ties around the nation to reconsider whether their own Second, RLUIPA requires municipalities to treat reli- laws are clear enough under federal and state due process gious uses equally to nonreligious uses.54 Theoretically, standards. this doesn’t change the existing law, which should have required similarly situated religious and nonreligious F. The Future of Historic Preservation Law uses to be treated equally. But it does provide a new 1. Sustainable Buildings avenue for challenges to land-use laws. For example, in The U.S. Green Building Council’s voluntary stan- 2008 the Third Church of Christ Scientist successfully dards for sustainable buildings, “Leadership in Energy argued in the U.S. District Court that New York City’s and Environmental Design,” or LEED, have become Department of Buildings violated RLUIPA by refusing to the widely accepted standard for sustainability in the permit a catering hall use within the church basement.55 construction industry.60 There are now LEED guidelines The church pointed out that the city permitted the Beek- for both new and renovated buildings. To deal with the man Hotel, mere steps away from the church, to operate a perception that only new buildings can be sustainable, similar restaurant and catering facility. the U.S. Green Building Council recently reformulated its Third, RLUIPA prohibits municipalities from com- LEED certifi cation for “operation and maintenance” of pletely excluding houses of worship from a jurisdiction. existing buildings, which may help owners of landmark The law states: “No government shall impose or imple- properties achieve LEED certifi cation even if they are not ment a land use regulation that . . . totally excludes reli- planning major “gut” renovations of their buildings. gious assemblies from a jurisdiction. . . .”56 This provision LEED certifi cation allows buildings to “earn” points has not been litigated extensively, probably because few in a variety of categories by choosing sustainable sites, municipalities entirely exclude houses of worship. improving water effi ciency, improving energy effi ciency There continues to be a tremendous amount of inter- and reducing air pollution, using sustainable materials est in RLUIPA’s impact on local laws. There have already and resources, improving indoor air quality and generally been a number of unsuccessful facial challenges to incorporating sustainability into the design process. One RLUIPA by municipalities that claim that Congress might expect these forms of construction to increase costs usurped the states’ police powers or violated the U.S. substantially, but early planning can minimize the price Constitution’s Establishment Clause. These sorts of law- difference between sustainable buildings and their stan- suits are likely to continue until the Supreme Court fi nally dard counterparts. addresses RLUIPA. LEED-certifi ed buildings still constitute only a frac- Finally, there have been some challenges to land- tion of overall construction in the United States. There mark laws based on state or federal constitutional “due were about 1,200 LEED-certifi ed buildings by the end of process” guarantees. A recent decision from an Illinois 2008, mostly new rather than renovated buildings. But appellate court has raised concerns in the preservation that number grows exponentially each year, with thou- community because of the court’s harsh treatment of Chi- sands of projects registered to achieve certifi cation. As cago’s Landmark Ordinance based on state due process John Weiss of the New York City Landmarks Preservation concerns. The plaintiffs in Hanna v. City of Chicago owned Commission writes in his article for this journal, it should property that the Commission on Chicago Landmarks be possible to incorporate sustainable design into historic designated in 2006.57 They objected to that designation buildings without damaging their protected features. and brought a facial challenge to the city’s ordinance, alleging that the ordinance was void for vagueness and 2. Incentives ambiguity under Illinois’s constitutional due process The most important federal incentive for restoration clause. A law violates due process guarantees when “its of historic properties is the rehabilitation tax credit, which terms are so incomplete, vague, indefi nite and uncertain has encouraged thousands of property owners to adap- that men and women of ordinary intelligence must nec- tively reuse historic structures. The tax credits include essarily guess at their meaning and differ as to their ap- (a) 20 percent of the qualifi ed rehabilitation expenditures plication.”58 The court applied that standard to Chicago’s with respect to any certifi ed historic structure on the ordinance, which directs the commission to consider a po- National Register of Historic Places or within a register tential landmark’s “value,” “importance,” “signifi cance,” district; and (b) 10 percent of the qualifi ed rehabilitation
10 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 HISTORIC PRESERVATION expenditures for other buildings “placed in service” ing designation of modern buildings, as one New York before 1936.61 This tax credit can help offset the costs court did in Landmark West! v. Tierney, a decision that of preserving historic building details or seeking LEED upheld the New York City Landmarks Preservation Com- certifi cation. The tax credit requires, however, compli- mission’s decision not to hold a public hearing on the ance with the exacting restoration standards of the U.S. designation of the controversial “Huntington Hartford” Department of Interior.62 building in Columbus Circle, Manhattan.67 The building’s owner subsequently completely altered the façade (an im- Because of budgetary concerns, New York State has provement in some critics’ perspectives). In this author’s long resisted creation of a state counterpart to the federal experience, there are also different viewpoints on modern tax credit, despite annual lobbying by a wide array of architecture between some at New York’s State Historic preservation organizations. In 2006 the legislature fi nally Preservation Offi ce and at local landmark agencies; SHPO created a state rehabilitation tax credit for projects al- is more likely to disfavor modern construction within ready receiving the federal credit. But it limits the state State and National Register Districts. credit to 30% of the federal tax credit or $100,000, which- ever is less.63 In 2009, several legislators introduced a bill to increase the limit to $5 million. Eligible projects would “[O]ne of the best arguments in favor of be located in economically distressed areas and include protecting and expanding preservation costs incurred between 2010 and 2015.64 The bill’s pros- pects are uncertain. efforts in all economic climates is preservation’s positive economic impact The Internal Revenue Service also offers a tax deduc- tion for donations of a qualifi ed interest in property to a on New York’s economy, property values, nonprofi t corporation for conservation purposes.65 This tourism and overall character of the state’s tax deduction is intended to foster conservation of open communities.” space and historic buildings through donations of title or easements. Prior to 2006 there was a substantial increase in the practice of donating “façade easements” that al- 4. Economics lowed the property owner to retain title while ceding the Historic districts and landmarks are equally threat- right to change the façade of a building, often a historic ened in economic booms and busts. During the economic townhouse. This practice raised some concerns because boom of the past decade, development sometimes sped many historic buildings are already protected by pres- past efforts to identify and protect historic structures in ervation laws, which makes the “donation” gratuitous. certain communities. Preservationists have felt outnum- Moreover, some homeowners were exaggerating the val- bered and outgunned by developers seeking to construct ue of the donated easement to increase the tax deduction, new glass and steel towers in historic districts or under- suggesting tax fraud in some cases. The practice was take substantial modifi cations to potential landmarks. The serious enough to prompt congressional investigations,66 economic recession poses a different kind of threat, with which resulted in a revision to the U.S. tax code that preservation staff faced with cuts that may hamper new limits the practice to easements that genuinely protect efforts to designate landmarks or enforce existing laws. an entire structure and involve a bona fi de preservation Ultimately, however, one of the best arguments in favor of organization as the holder of the easement. protecting and expanding preservation efforts in all eco- The above are just some of the major economic in- nomic climates is preservation’s positive economic impact centives for preservation of historic properties. There on New York’s economy, property values, tourism and are numerous others at the federal, state and local level, overall character of the state’s communities. including some new loans and grants that states and mu- nicipalities may be able to offer because of the 2008 and Endnotes 2009 economic stimulus laws. 1. Other signifi cant federal preservation laws include the following: Antiquities Act of 1906, 16 U.S.C. §§ 431–433 (permits the President 3. Modern Architecture to declare national landmarks and protects federally owned landmarks, ruins, etc.); Archeological and Historic Preservation One of the biggest issues for the preservation com- Act, 16 U.S.C. § 469 (protecting archeological resources, munity will be how to incorporate and embrace modern particularly from dams) and Archeological Resources Protection architecture. As Susan Stern has written in her article for Act of 1979, 16 U.S.C. §§ 470aa et seq. (protecting archeological this journal, modern architecture can generate extraordi- resources on public lands); American Indian Religious Freedom Act, 42 U.S.C. § 1996 (directing federal agencies to protect nary controversy among preservationists. Ultimately, as important religious sites for American Indians); Abandoned Ms. Stern writes, courts are likely to be very deferential Shipwreck Act of 1987, 42 U.S.C. §§ 2101–2106. in their treatment of municipalities’ decisions regard- 2. 16 U.S.C. § 470a.
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 11 HISTORIC PRESERVATION
3. 36 C.F.R. § 60.4. 39. N.Y.C. Admin. Code § 25-307(b)(1). 4. 16 U.S.C. § 470a(b). 40. N.Y.C. Admin. Code § 25-307(b)(2). 5. 16 U.S.C. § 470h(f). 41. N.Y.C. Admin. Code § 25-307(b)(3). 6. 16 U.S.C. § 470i. 42. N.Y.C. Charter § 3020(9) (Commission hardship panel for tax- 7. Both are available at the ACHP’s Web site, www.achp.gov. exempt properties); N.Y.C. Admin. Code § 25-309 (request for certifi cate of appropriateness authorizing demolition, alterations 8. 16 U.S.C. § 470f. or reconstruction on ground of insuffi cient return, which is 9. 36 C.F.R. § 800.3(a)(1). available to both taxable and tax-exempt properties). 10. 36 C.F.R. § 800.3 sets forth the required consulting parties in the 43. N.Y.C. Zoning Resolution § 74-711; see also § 74-712 (for certain Section 106 process. Federal agencies can and often do allow other types of manufacturing zones). parties, such as preservation organizations, to participate as well. 44. N.Y.C. Zoning Resolution § 74-79 (transfer of development from See 36 C.F.R. § 800.3(f)(3). landmark sites). 11. 36 C.F.R. §§ 800.6 (resolution of adverse effects) and 800.14. 45. 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed.2d 631 (1978). 12. 36 C.F.R. § 800.7. 46. 438 U.S. at 118, 98 S. Ct. at 2656, 57 L. Ed.2d at 644. 13. See generally 42 U.S.C. §§ 4321–4347. 47. 438 U.S. at 125, 98 S. Ct. at 2659, 57 L. Ed.2d at 649. 14. 36 C.F.R. § 800.1. 48. 438 U.S. at 136, 98 S. Ct. at 2664, 57 L. Ed.2d at 656. 15. 42 U.S.C. § 4332. 49. 2004 U.S. Dist. LEXIS 17807 (S.D.N.Y. 2004). 16. 36 C.F.R. § 800.8(a)(1). 50. Id. at 36. 17. 40 C.F.R. § 1508.8. 51. 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). 18. 40 C.F.R. § 1508.13. 52. 42 U.S.C. § 2000cc. 19. 49 U.S.C. § 303(c), (d). There is an exception for de minimis impacts. 53. 42 U.S.C. § 2000cc(a). 20. 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed.2d 136 (1971). 54. 42 U.S.C. § 2000cc(b). 21. 401 U.S. at 412, 91 S. Ct. at 821, 28 L. Ed.2d at 412 (1971). 55. Third Church of Christ v. City of New York, 2008 U.S. Dist. LEXIS 22. New York’s SHPO is the commissioner of the Offi ce of Parks, 99822 (S.D.N.Y. 2008). Recreation and Historic Preservation. In practice, the term “SHPO” 56. 42 U.S.C. § 2000cc(b). is often used to refer to the historic preservation staff that handles the actual implementation of NHPA and SHPA in New York. 57. 2009 Ill. App. LEXIS 98 (Ill. App. 1st 2009). Id 23. N.Y. Parks, Rec. & Hist. Preserv. Law § 14.09. 58. . at 9. Id 24. Id. 59. . at 14. 25. 6 N.Y.C.R.R. § 617.7(c). 60. The U.S. Green Building Council (www.usgbc.com) is a nonprofi t organization composed of builders, municipalities, individuals 26. 6 N.Y.C.R.R. § 617.7(c). and others interested in sustainable construction. 27. 6 N.Y.C.R.R. § 617.7. 61. 26 U.S.C. § 47(a). 28. Id. (emphasis added). 62. 36 U.S.C. § 67.7. 29. 6 N.Y.C.R.R. § 617.5(c). 63. N.Y.S. Tax Law § 606(oo). There is also a tax credit for 30. 306 A.D.2d 113, 762 N.Y.S.2d 59 (1st Dep’t 2003) aff’d on other homeowners, which is capped at 20% or $25,000, whichever is less. grounds, 2 N.Y.3d 727, 811 N.E.2d 2, 778 N.Y.S.2d 740 (2004) 64. New York State Assembly Bill A.06471-A; New York State Senate (plaintiffs’ appeal was moot because they had not sought an Bill S.2960-A. injunction against the near-completed building.). 65. 26 U.S.C. § 170(h)(1). 31. 9 N.Y.C.R.R. § 427.1. 66. The House Ways and Means Committee’s oversight subcommittee 32. 9 N.Y.C.R.R. § 427.1(b). held a hearing in June 2005. 33. 9 N.Y.C.R.R. § 427.3. 67. 9 Misc. 3d 1102A, 806 N.Y. 2. 2d 445 (Sup. Ct., N.Y. Co. 2005) 34. New York City Charter § 3020. (court refused to force the New York City Landmarks Preservation Commission to have the full commission consider the designation 35. N.Y.C. Admin. Code § 25-302 (A landmark is defi ned as “any of a controversial modern building in Columbus Circle in improvement, any part of which is thirty years old or older, Manhattan.). which has special character or special historic or aesthetic interest or value as party of the development, heritage or cultural characteristics of the city, state or nation. . . . ”). Christopher Rizzo practices litigation, environmen- 36. N.Y.C. Admin. Code § 25-303. tal law and land-use law at Carter Ledyard & Milburn 37. N.Y.C. Admin. Code § 25-306. LLP. He is co-chair of the New York State Bar Associa- 38. N.Y.C. Admin. Code § 25-310. tion’s Committee on Parks and Historic Preservation along with Jeff Baker, Esq.
12 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 HISTORIC PRESERVATION Two Recent Cases Highlight Concerns About the New York City Landmarks Preservation Commission’s Management of the Designation Process By Susan M. Stern
New York City fi rst enacted legislation to protect disagreement about its aesthetic value. At the time of its landmarks in 1965 when Mayor Robert Wagner signed a opening, Ada Louise Huxtable’s review stated that “the local law establishing the Landmarks Preservation Com- new museum resembles a die-cut Venetian palazzo on lol- mission (LPC) as the public entity responsible for protect- lipops,”4 and it has been familiarly known as the Lollipop ing the city’s architectural heritage.1 The destruction of Building ever since. The building was fi rst considered Penn Station in 1963 had served as a catalyst to galvanize for landmark designation in 1996. At that time, LPC staff support to pass this legislation to preserve the city’s built and the LPC “Designation Committee” (described below) environment. Close to half a century later there is at least undertook a review and concluded the building was not a perception that LPC has not adequately protected some worthy of designation. The LPC, in exercise of its discre- resources, attributable to both to politics and holes in its tion, therefore did not hold a public hearing.5 enabling legislation.2 In May 2005 the petitioner submitted another request This article will evaluate the validity of this percep- to the LPC to consider the building for landmark status. tion as refl ected in a pair of court cases that have ques- LPC staff determined there were no new circumstances tioned the functioning of LPC and the Landmarks Law. that warranted calendaring the building for a public The article will then consider several proposals to amend hearing.6 This resulting lawsuit was brought to force the the New York City Administrative Code, which governs full commission to hold a public hearing on the designa- LPC’s procedures. This article will conclude by proposing tion. At issue were the LPC’s allegedly secretive internal a synthesis of some reform proposals, along with some procedures for evaluating designation proposals and the additional suggestions. Chair’s role in deciding whether to bring a designation proposal to the full commission. The Cases The court granted the respondent’s motion to dis- This evaluation will focus in particular on a pair of miss, fi nding that the petitioner’s arguments were inad- recent cases brought to challenge the LPC’s failure to act equate to support a cognizable claim that the LPC abused on designation of properties as landmarks. These cases its discretion.7 The court cited legal precedent holding encapsulate the criticism from preservationists who have that city law grants the LPC broad latitude to establish its grown frustrated with the LPC’s lack of action on certain own procedures for determining if landmark designation designation proposals. In Landmark West! v. Tierney, the is warranted.8 The court found that matters of aesthetics court upheld the LPC’s actions, yet voiced criticism of its are not justiciable (i.e., whether to designate).9 The court functioning in substantial dicta. In an unusual decision, also held that LPC can properly set its own operating the court in Citizens Emergency v. Tierney went much fur- procedures.10 Furthermore, the Landmarks Law does not ther, found the actions of LPC arbitrary and capricious, spell out specifi c procedures for evaluation of potential and directed the agency to remedy the situation by imple- landmarks.11 menting designation procedures. In dicta, however, the court raised concerns about is- In Landmark West! the petitioner preservation group sues it saw as being beyond its purview—the practices sought an order barring the Commission’s Chair from and procedures of the LPC. Specifi cally, the court ex- participating in the designation consideration of 2 Co- pressed concerns about the lack of transparency in LPC’s lumbus Circle and from blocking the full Commission consideration of proposed landmarks, stating: 3 from considering the designation. The group had sought the litigation and larger public debate to obtain landmark status for this Edward Durrell Stone raise serious questions about the wisdom building, constructed in 1964 as the Huntington Hartford of the Commission’s internal, essentially Gallery of Modern Art. The trapezoidal building sits just private and effectively unreviewable de- to the south of Columbus Circle, with the arc of the front cision [not to designate a property] façade echoing the circle’s curve. While the building’s . . . that exercise of discretion may have massing is successful, its ornamentation has sparked affected the Commission’s reputation as a
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 13 HISTORIC PRESERVATION
guardian and arbiter of New York City’s found that delays in considering proposed designations architectural heritage and undermined ran counter to the purpose of commission, which was not public confi dence in the process.12 adequately protecting the resources it was charged with responsibility for.21 The court found the LPC’s failure to The deference paid to the LPC by the court in Landmark consider designation of properties that its internal “re- West! is typical of a court faced with a challenge to the quest for evaluation” committee had determined were operations of an administrative body that functions based meritorious was arbitrary and capricious.22 The court 13 on specialized knowledge of agency personnel. directed the LPC to promulgate procedures to review In Citizens Emergency v. Tierney, the petitioner, Citizens all Requests for Evaluation (RFE) within 120 days of the Emergency Committee to Preserve Preservation (CEPP), requests’ submission and to report all recommendations alleged the LPC’s process for designating landmarks was of LPC’s internal RFE Committee, positive or negative, both statutorily and constitutionally fl awed, and that the to the full LPC (which would necessarily be in the public Chair had commandeered the power of the commission record).23 by controlling whether undesignated properties were 14 brought before the full commission for consideration. The New York City Administrative Code The petitioner further asserted faults in the designation process, including LPC’s allegedly unreasonable delays The courts’ concerns about LPC’s work can be at- in reviewing proposed designations and failure to consis- tributed in part to the judicial deference usually paid to tently apply standards for determining which properties government agencies as well as the limitations of the New should be designated. Specifi c allegations focused on the York City Administrative Code. In general, courts grant lack of action on six requests for consideration that were a broad degree of latitude to administrative agencies pending for several years.15 These requests ranged from in establishing their internal operations. This deference a three-year-old request for the Art Deco “Fish Building” discourages challenges to agency procedures. Moreover, apartment house on the Grand Concourse in the Bronx Landmark West! typifi es the substantial deference paid by (named for its entrance-way mosaics) to a request to con- courts to government agencies in defi ning their own pro- sider an expansion of the Park Slope Historic District in cedures. Brooklyn, which had been pending for over six-and-a-half As will be laid out below, the bulk of the Adminis- years. The general relief requested included an order to trative Code is focused on the regulation of landmarks the LPC to implement procedures that are “more trans- post-designation, when the property is within the LPC’s parent and fair,”16 including a request that all dispositions jurisdiction, and not on the process that leads up to that of proposed designations be made on the record, that point. The concerns raised in the cases focused on the there be clear public standards for designation, and that designation process and the LPC’s actions leading up all properties for which an evaluation request is received to the decision of whether to designate a property as a be seen by the full commission.17 landmark, not about its handling of its trust of designated The legal analysis hinged on whether the LPC’s duty properties. to consider a designation is discretionary or ministerial.18 The Code lays out the rationale for protecting certain Article 78 of the N.Y. CPLR permits challenges to an agen- properties, citing the public policy interest in protecting cy’s failure to perform a statutory duty (a so-called min- buildings found of worthy of designation for their “spe- isterial action) and to an agency’s improper exercise of its cial character or historical or aesthetic interest or value”24 own discretion (so-called discretionary action). But court or representation of the best architecture from different review of the latter category of actions is strictly limited. historical eras. But the Code mostly focuses on LPC’s The petitioner argued that the relief sought implicated powers and duties after a property has been designated LPC’s statutory and ministerial duties: timely disposition as a landmark,25 including procedures governing any of all requests for designation, consideration by the full changes to properties under its jurisdiction.26 Post-desig- Commission on the record, and greater transparency.19 nation LPC must hold public hearings on applications to The court agreed with petitioner’s assessment that alter a landmark and give reasons behind any determina- tion granting or denying permission to do work on a des- compliance with petitioner’s demand for processing of 27 the designation proposals would not impinge on LPC’s ignated building. discretion and ordered the LPC to make changes regard- While the Code provides structure to the post-desig- ing timing and transparency. The court cited the Court of nation process, the pre-designation process is largely un- Appeals, which has previously held that administrative defi ned. Administration Code § 25-319 provides that the agencies owe applicants a duty of fairness, including a commission “may promulgate, amend and rescind such hearing and prompt determination.20 The court therefore regulations as it may deem necessary to effectuate pur-
14 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 HISTORIC PRESERVATION poses of this chapter.”28 But the LPC has not laid out any considered for designation; (2) require reciprocal notifi ca- regulations for this designation process and the Code tion by the DOB to LPC upon receipt of a permit applica- doesn’t provide them. tion for a property under consideration (and furthermore revoke previously issued DOB permits on these proper- Instead, the LPC Web site lays out the procedure ties);33 (3) require LPC to consider all buildings over a leading to designation: interested parties can request certain age for designation when their owners apply for consideration for properties they think worthy of desig- building permits;34 and (4) require the city to create a cen- nation by submitting a Request for Evaluation (RFE) to tralized database with all publicly available information the LPC. The RFE is reviewed by the internal RFE Desig- related to real property.35 nation Committee composed of the Chairman, the Exec- utive Director, the Chief of Staff, the Director of Research, While there is value in a number of these proposed and other agency staff to determine if the property meets reforms, the reform measures have been piecemeal in na- designation criteria. The Director of Research then in- ture. A more holistic approach may be more effective. The forms the party requesting designation if the committee’s overall aim should be to make the pre-designation pro- determination is yes or no. If the Committee determines cess as comprehensive as the post-designation processes, that a proposed property merits further consideration, with procedures for time frames and communication information is forwarded to individual commission- spelled out. Such reform should maintain LPC’s discre- ers for comment. The decision of whether to bring the tion on designations, but give the Commission a better property to the full Commission for review is ultimately framework to operate within. made by the Chair. If he or she determines that a proper- ty warrants consideration, the full Commission reviews In addition to instituting timelines and communica- it at a public meeting. This hearing is the fi rst time that tion requirements, it is important to improve designation the designation process unfolds publicly. The concerns criteria, which are now somewhat vague and subject to expressed in the above cases have centered on this inter- political pressure. While it is impossible to remove poli- nal process, which occurs without public oversight.29 tics entirely from decisions, it is important to minimize this aspect of the decision-making process and restore public confi dence in this institution. In general, greater Reform Proposals transparency in operations will go a long way toward Due to some of these alleged shortcomings, the New achieving this goal. York City Council has considered a number of proposed reforms to the Landmarks Law. The primary concerns Endnotes about LPC’s delays are tied to its jurisdiction, which 1. The New York City Landmarks Preservation Commission— vests in the LPC only upon designation of a landmark. FAQs—About the Landmarks Preservation Commission, http:// Up until designation, property owners retain the ability www.nyc.gov/html/lpc/html/about/about.shtml. to demolish their buildings or remove architectural de- 2. Robin Pogrebin, An Opaque and Lengthy Road to Landmark Status, tails regardless of historical value. Thus, problems aris- N.Y. Times, Nov. 26, 2008. Ms. Pogrebin’s article gives an overview ing out of delays in designation process are deemed par- of the concerns of the LPC’s functioning, and provided inspiration for this article. ticularly critical, and a number of proposals have aimed at addressing the protection of vulnerable buildings that 3. Landmark West! v. Robert B. Tierney, 2005 N.Y. Slip Op. 5134U, 1 (Sup. Ct., N.Y. Co. 2005). This proceeding was the fi fth brought do not yet have the status of landmarks. by Landmark West! in its attempts to prevent the sale of the 2 Columbus Circle building to the Museum of Art and Design There have been several proposals to force LPC’s and to have the building designated as a landmark. Previous hand in considering designations. They include propos- challenges included action brought against the NYC City Planning als to allow the City Council to direct LPC to hold a Commission (Matter of Landmark West!, et al. v. Burden, 3 Misc. 3d public hearing on proposed designations;30 to allow the 1102(A), 2004 N.Y. Slip Op. 50331(U) (Sup. Ct., N.Y. Co.), aff’d 15 A.D.3d 308, 790 N.Y.S.2d 107 (1st Dep’t 2005) (challenging the Council to publish bi-annual lists of properties it deems City’s environmental review); Landmark West!, et al. v. Manhattan worthy of consideration, upon which LPC must act Borough Board (Sup. Ct., N.Y. Co. Feb. 15, 2005), Beeler, J., Index within a set time frame;31 and to force LPC to add staff No. 116913/2004 (challenging Borough Board’s approval of responsible for conducting regular assessments and rec- proposed sale); Landmark West! v. City of New York, et al. (Sup. Ct., N.Y. Co. March 29, 2005), Stallman, J., Index No. 117996/2004 ommendations for properties worthy of designation to (challenging the response to Freedom of Information Law request); Commissioners.32 Landmark West!, et al. v. City of New York and NYC Economic Dev. Corp. ( Sup. Ct., N.Y. Co.), Stallman, J., Index No. 103689/2005 Other proposals focus on the relationship between (challenging the building sale under public trust doctrine); LPC and the Department of Buildings (DOB). Proposed Landmark West! v. Tierney, et al. (Sup. Ct., N.Y. Co.), Stallman, J., amendments to the Administrative Code would (1) Index No. 107387/2005 (proceeding to disqualify Landmarks Commissioner and bar communication with museum principals; require LPC to inform DOB when a property is being the instant proceeding). All actions have been dismissed.
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 15 HISTORIC PRESERVATION
4. Ada Louise Huxtable, Architecture: Huntington Hartford’s Palatial 20. Id. at 9. Midtown Museum , N.Y. Times, Feb. 25, 1964, 33. 21. Id. Landmark West! 5. at 1. 22. Id., citing Klostermann v. Cuomo, 61 NY2d 525 (1981) (compelling 6. Id. timely action on non-discretionary duties). 7. Id. at 5. 23. Id. at 10. Landmark West! appeal has been denied; Citizens Emergency 8. Id. at 2. is on appeal. 9. The LPC has substantial discretion to determine whether 24. N.Y.C. Admin. Code § 25-301. to designate a property based on the following defi nition: 25. N.Y.C. Admin. Code § 25-305. “Landmark: Any improvement, any part of which is thirty years 26. Id. old or older, which has a special character or special historical or aesthetic interest or value as part of the development, heritage or 27. N.Y.C. Admin. Code § 25-315. cultural characteristics of the city, state or nation, and which has 28. N.Y.C. Admin. Code § 25-319. been designated as a landmark pursuant to the provisions of this chapter.” N.Y.C. Admin. Code § 25-302. 29. The New York City Landmarks Preservation Commission—FAQs, available at http://www.nyc.gov/html/lpc/html/faqs/faq_ 10. Landmark West! at 4. designation.shtml. 11. Id. at 2. 30. Int. 0705-2005, http://www.nyccouncil.info/html/legislation/ 12. Id. at 3. legislation.cfm. The City Council refers to bills as “introductions,” using the abbreviation “Int.” 13. Id. at 5. 31. Int. 0393-2006. 14. Citizens Emergency v. Robert B. Tierney, Index No. 103373/2008 (Sup. Ct., N.Y. Co. fi led Nov. 21, 2008) 3. While the concerns 32. Int. 0400-2006. regarding control of the designation process in the two cases are 33. Int. 0542-2007. Proposal allows for the permit to be reinstated upon similar, the action brought by Landmark West! was narrowly showing that the holder has undertaken substantial expenditures. tailored, addressing concerns about a particular building. The action brought by CEPP was much broader, addressing concerns 34. Int. 0317-2004; Int. 99513-A -2004. about long-standing lack of action in protecting eligible buildings. 35. Int. 0869-2007. This database would include information from It is perhaps this much broader view that led to this court taking the Department of Buildings, the Department of Finance, the action, while the previous court felt constrained to voice its Fire Department, Department of Housing Preservation and concern about LPC functioning in dicta. Development, LPC and the Rent Guidelines Board. 15. Id. at 4. 16. Id. Susan M. Stern is a J.D. candidate at Fordham Law 17. Id. School. Prior to her studies Ms. Stern, a registered ar- 18. Id. at 6. chitect, had extensive experience in the design and con- 19. Id. at 8. struction industry.
NEW YORK STATE BAR ASSOCIATION
Annual Meeting location has been moved— Hilton New York 1335 Avenue of the Americas New York City
January 25-30, 2010
16 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 HISTORIC PRESERVATION Landmarks and Sustainability By John Weiss
Introduction site and any improvements to the front, side or rear yards. Energy effi cient buildings that minimize their carbon Construction, reconstruction, alteration and demolition footprint are often thought of as new structures designed on landmark sites require Commission permits before to be energy effi cient and built with materials character- work begins or a Department of Buildings (DOB) permit 3 ized as “green,” such as bamboo fl ooring. Retrofi tted his- is obtained. In a nutshell, almost all alterations to land- toric buildings, however, can also be energy effi cient and marks other than ordinary maintenance need a permit. have the added bonus of not using the signifi cant amount of energy expended in the construction of a new building. “Can one achieve the goal of retrofitting Can one achieve the goal of retrofi tting a landmark build- ing to increase its energy effi ciency within the regulatory a landmark building to increase its energy overlay created when a building is designated an offi cial efficiency within the regulatory overlay landmark? The answer to this question is a resounding created when a building is designated yes, as demonstrated by the extent of such work already an official landmark? The answer to this under way on landmark buildings in New York City. question is a resounding yes . . .“ This article examines the regulation of designated landmarks in New York City and how actions to conserve energy or generate alternative energy can be consistent with landmark status. Regulatory approvals for work on Landmarks Preservation Commission Permits landmarks to conserve energy or generate energy from The Administrative Code provides for three types of alternative sources include measures that require no regu- LPC permits, two of which are issued after an LPC staff- latory action, some that only need easily obtained staff- level review and one after a Commission-level review.4 level permits, and to others necessitating a more complex Approximately 95% of permits issued by the Commis- public review process. sion are staff-level permits. Once the staff person has all information necessary to issue a permit, staff permits are issued quicker than Commission-level reviews because Landmark Regulation in New York City no public hearing process is required. Landmarks Com- Landmarks in New York City are identifi ed and des- mission Rules (Title 63 of the Rules of the City of New ignated by the Landmarks Preservation Commission, a York) set forth explicit standards for work that qualifi es city agency created in 1965. The Commission designates for staff-level permits so an applicant can often determine four types of landmarks: individual landmarks such as in advance what type of permit is needed for proposed the Empire State Building; historic districts like the SoHo- work. Cast Iron Historic District; interior landmarks such as the interior of the Gage & Tollner restaurant in Brooklyn, and The fi rst type of staff-level permit is a Certifi cate of scenic landmarks like Central Park. The Commission has No Effect (CNE), which is issued when a permit is re- designated over 25,000 properties in all fi ve boroughs of quired from the DOB and there is no effect on the land- New York City and annually issues approximately 10,000 mark’s protected architectural features. Examples of work permits for alterations to landmarks. It has 11 Commis- qualifying for a CNE include minimally visible rooftop sioners and approximately 65 staff members. additions for mechanical equipment, small rear-yard ad- ditions and interior work that requires a DOB permit. Pursuant to the Landmarks Law,1 the Commission Commission staff reviews such work to ensure it does not designates improvements on landmark sites, which are affect protected features of a landmark or detract from the usually co-extensive with the underlying tax lots. Once special character of a historic district. There also is an Ex- designated, the Commission regulates alterations to the pedited CNE (XCNE) for purely interior work above the improvements or the landmark site. Improvements— second fl oor of a landmark. broadly defi ned as a “building, structure, place, work of art or other object constituting a physical betterment of The second type of staff-level permit is a Permit for real property”2—can include buildings, bridges, sidewalk Minor Work (PMW), which is issued when proposed clocks, fences and sidewalks. Consequently, the Commis- work does not require a DOB permit but will affect sig- sion regulates changes to the entire landmark site, includ- nifi cant protected architectural features, e.g., window ing the front, side and rear façades of any structure on the replacement or masonry repairs.
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 17 HISTORIC PRESERVATION
If the proposed work does not meet the requirements dows in a substitute material, such as wood windows for a staff-level permit, the applicant can seek a Commis- being replaced by aluminum windows, but such applica- sion-level permit called a Certifi cate of Appropriateness tions are limited to certain types of buildings and window (CofA), which is required for work that on its face has types. Even if a staff permit is not feasible, a Commission- an effect on architectural features and does not qualify level Certifi cate of Appropriateness permit may be issued for a staff-level permit. Examples of CofA work include if the replacement windows are found to be appropriate. demolition of a landmark, construction of a new building Historically, many buildings had window awnings. in a historic district, visible additions, modern storefronts Awnings are a low-tech way to reduce a building’s cool- and replacement of special windows. When reviewing ing load. If there is historic precedence for awnings on the a CofA application the Commission considers the effect type of building for which an application to install aw- of the proposed work on the signifi cant features of the nings is submitted and the awning design is historically landmark and whether the proposed changes are compat- appropriate, the awnings can be installed pursuant to a ible with the landmark’s appearance and character. In a staff permit. historic district, the Commission also considers the effect of the proposed work on neighboring buildings and the Green roofs—roofs covered with growing media character of the district.5 and vegetation—which reduce storm water run-off and have insulating qualities, have been approved in New Landmark Review of Energy Conservation York City historic districts by staff-level permits for non- Measures visible, fl at roofs. Most steps to decrease energy consumption in a landmark do not need a permit from the Commission or, Landmark Review of Alternative Energy if a permit is required, require only a staff-level permit. Generation Measures One of the easiest ways to decrease a building’s heating As is the case with energy conservation measures, and cooling load is to install insulation or augment exist- some alternative energy steps only require staff-level ing insulation. Insulation installation, whether the more permits. For instance, installation of a geothermal heating traditional fi berglass batting or advanced open or closed and cooling system (a system that uses the earth’s nearly cell foams, is interior work that does not require a DOB constant temperature of approximately 56 degrees to ef- permit and therefore no LPC permit. Similarly, installa- fi ciently heat and cool a building and provide hot water) tion of more energy effi cient appliances does not require is almost always exclusively interior and below-grade an LPC permit unless the installation of equipment re- work, and will therefore only require a staff-level permit. quires a DOB permit. Even if a DOB permit is required, in Similarly, installation of a co-generation unit should have many cases the applicant will need only an XCNE from minimal impact on the exterior of a landmark and should Commission staff. If a new duct or vent is required that also require only a staff-level permit. perforates an exterior wall, e.g., a range exhaust, then a non-expedited staff permit is required. Installation of geothermal heating and cooling units should be encouraged by preservationists because such If historic windows are drafty, interior storm win- units eliminate the need for unsightly rooftop condensers dows can be installed without an LPC permit if simple and cooling towers. criteria set forth in the Landmarks Rules are met. If the interior storm window criteria are not met, or a property The LPC has approved over 20 applications to install owner wants to install exterior storm windows, only a solar panels on buildings in historic districts that are not staff-level permit is needed. Similarly, skylights that pro- individual landmarks and at least one midtown skyscrap- vide natural light and reduce electrical usage are regular- er that is an individual landmark, which installed a large ly approved at the staff level if the skylights do not dam- solar panel array. These applications are usually more age signifi cant architectural features and are either not complex because of visibility issues. A mock-up of where visible, or minimally visible, from a public thoroughfare. the solar panels will be placed, which shows the extent to which the proposed solar panels are visible from a public In many cases new windows with energy effi cient thoroughfare, is required. The vast majority of these in- features, such as double glazing with inert gases between stallations are installed pursuant to staff-level CNEs. the glass, can be installed pursuant to LPC staff-level permits if the existing windows are beyond repair, the re- To obtain a staff-level permit for photovoltaic installa- placements match the historic windows and certain other tions, several fi ndings must be made, including fi ndings criteria are met (such as the operation, profi le, confi gura- that the rooftop addition consists solely of mechanical tion, fi nish and other aspects of the replacement window). equipment, that the installation will not damage any sig- Staff permits can be obtained even for replacement win- nifi cant architectural feature of the roof, that the mechani-
18 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 HISTORIC PRESERVATION cal equipment is either not visible, or minimally visible, vation Commission range from nonexistent to substantial from a public thoroughfare, and that the equipment will depending on the work proposed. Consequently, it is al- not adversely affect signifi cant architectural features of ways advisable to contact Commission staff or, at a mini- adjacent buildings. From a historic preservation perspec- mum, review its Web site for guidance before embarking tive, one benefi t of photovoltaic arrays is that the work is on alterations to a designated landmark. In furtherance usually easily reversible. of the movement to retrofi t historic buildings, the Com- mission has formed a staff “green team” to work on these One important, yet often ignored, method of design- issues. ing an energy effi cient building is to “right size” the design. Instead of having a 12-foot fl oor-to-ceiling height The Commission embraces environmentally respon- in a penthouse addition, a more modest 9-foot height sive alterations to landmarks that are appropriate to the not only saves material, but also requires less energy to historic architectural features. With thoughtful planning heat and cool while still being of a generous proportion. and an awareness of what changes can be approved by Reducing the height of a rooftop addition often helps the Commission, approval can be easily obtained for de- decrease or eliminates visibility of the addition from a creasing the environmental impact of a landmark build- public thoroughfare, which is frequently a landmark ing. issue. Consequently, modestly refi ning the size of an ad- dition can meet not only energy effi ciency goals, but also Endnotes landmark goals. 1. See § 3020 of the City Charter, § 25-307 of the N.Y.C. Administrative Code and Title 63 of the Rules of the City of New York, collectively known as the “Landmarks Law.” Summary 2. N.Y.C. Admin. Code §25-302(i). Installation of energy conservation measures and 3. N.Y.C. Admin. code §§ 25-305, 25-310. alternative energy sources need not confl ict with the et seq goals of historic preservation and can, in certain situa- 4. N.Y.C. Admin. Code §§ 25-306 . tions such as installation of geothermal energy systems, 5. N.Y.C. Admin. Code §§ 25-307(b)(1) and (2). be an improvement over traditional systems in terms of eliminating unattractive visible alterations to landmarks. John Weiss is the deputy general counsel at the New The regulatory requirements from the Landmarks Preser- York City Landmarks Preservation Commission.
NEW YORK STATE BAR ASSOCIATION
Save the Dates Environmental Law Section FALL MEETING October 23-25, 2009 Inn on the Lake • Canandaigua, NY (Joint Meeting with the Municipal Law Section)
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 19 HISTORIC PRESERVATION Historic Preservation at a Crossroads: The 2009–2013 New York State Historic Preservation Plan By Amy E. Facca
The New York State Offi ce of Parks, Recreation and training programs offering much needed preservation Historic Preservation (OPRHP) will soon publish Historic skills training and energy conservation techniques that Preservation at a Crossroads, the 2009-2013 New York State can be incorporated into building rehabilitation projects Historic Preservation Plan.1 Like plans recently prepared would fi t in well with emerging green employment pro- by other state historic preservation offi ces, it refl ects a grams, producing not only jobs but also signifi cant eco- movement away from a more inwardly focused opera- nomic benefi ts in participating communities and regions. tional and organization-based document to a more stra- tegic plan that provides informed direction and guidance The planning process benefi ted from and took place for preservation efforts throughout the state.2 Historic at approximately the same time as a number of other im- Preservation at a Crossroads is therefore not a plan for the portant events and planning initiatives, including: New York State Historic Preservation Offi ce alone; it es- • An aggressive statewide OPRHP capital program tablishes a strong foundation for enhanced preservation to rehabilitate New York’s aging parks and historic leadership, collaboration, coordination, advocacy, plan- sites; ning, and education throughout the Empire State.3 • Publication of the seminal Preserving New York: Winning the Right to Protect a City’s Landmarks and Plan Preparation Process two related conferences convened by the New Although the plan has been prepared mainly by the York City-based New York Preservation Archives New York State Historic Preservation Offi ce and will Project;6 guide much of the agency’s work over the next fi ve years, • Preservation Vision NYC, a year-long collaborative it was developed with extensive public input,4 including analysis and report on historic preservation in New more than 75 individual interviews, 12 public meetings York City;7 in locations across the state, and six professional confer- ence and meeting presentations (draft materials were also • The New York State Council on the Arts’ state- made available for public comment). In addition, the New wide Cultural Blueprints meetings (modeled and York State Board for Historic Preservation, a statewide building upon statewide meetings conducted ear- plan advisory committee, and numerous preservation lier in the year by the Empire State Development partner organizations helped guide and inform prepara- Corporation);8 and, tion of the plan and contributed diverse perspectives about historic preservation.5 • Completion of the Erie Canalway National Heritage Corridor’s management plan and heritage tourism economic impact survey.9 A Time of Evaluation and Change The planning process made it clear that 43 years after The plan’s title, Historic Preservation at a Crossroads, the enactment of the National Historic Preservation Act emphasizes that it was prepared and will be implemented and almost 30 years after the adoption of the New York at a critical moment in New York State’s history. The ex- State Historic Preservation Act,10 there are many suc- tensive planning process was conducted within a rapidly cesses and accomplishments to celebrate. New York has a changing state and national climate of political change, robust State Historic Preservation Offi ce complemented wildly fl uctuating but generally increasing energy prices, by a strong not-for-profi t statewide historic preservation and a sustained economic recession the depth of which is organization. A network of active, professionally staffed approaching levels not experienced since the Great De- regional and local not-for-profi t historic preservation pression. organizations has grown from approximately 10 in the In the fi eld of historic preservation, as in most busi- 1960s to more than 30 in 2009 and is augmented by nu- ness sectors, these trends will likely continue to present merous partners from a wide range of related professional challenges such as budget cuts, hiring freezes and layoffs, and volunteer membership organizations. reductions in hours and services, program modifi cations, Thousands of buildings, districts, structures, land- and other changes. At the same time, however, there will scapes, objects, and sites have been formally documented, undoubtedly be new opportunities. For example, new job
20 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 HISTORIC PRESERVATION evaluated, and listed in the National and State Registers are critically important because although many of New of Historic Places or determined eligible for registers’ York State’s communities have suffered economic decline, listing. Innumerable vacant, abandoned, and dilapidated population losses, and disinvestment for decades, their buildings have been rehabilitated and returned to pro- rich history, heritage, and highly desirable quality of life ductive use. Intensifi ed interest in the protection of com- assets are largely intact. Preservation strategies are also munity character has led to the adoption of an increasing important because individuals, small businesses, and cor- number of local historic district ordinances and related porations are increasingly making decisions about where land use strategies as well as growing participation in to live, attend college, raise a family, retire, travel, invest, the Certifi ed Local Government program.11 or establish headquarters based on community charac- ter and quality of life. They evaluate communities on At the same time, however, many challenges re- their authentic character, unique sense of place, safe and main. Historic preservation efforts are often fragmented friendly neighborhoods, connection to public transporta- between numerous involved groups and individuals. tion, schools, health and human services, history, arts, cul- Economic incentives and certain public policies continue ture, entertainment, recreation, and overall vibrancy. to favor new construction and development over build- ing, neighborhood, and community revitalization. Few Historic Preservation at a Crossroads is designed to im- people, from elected offi cials to local residents, recognize prove New York State’s ability to achieve the economic, or understand the economic, social, and environmental social, and environmental benefi ts related to the identifi - benefi ts of historic preservation. Many historic sites, cation, protection, enhancement, and promotion of its his- museums, libraries, and arts and cultural organizations toric and cultural resources. Its vision, goals, and imple- are threatened with closure because of lack of funding, menting actions establish a dynamic framework that has decreased visitation, increased operational challenges, been purposefully designed to broaden engagement in, and competition from an ever-expanding range of edu- understanding of, and support for historic preservation. It cational and entertainment choices. The number of new provides context and direction as well as substantial back- not-for-profi t preservation (and related) organizations ground information and supporting resources for any- continues to grow in spite of ongoing capacity building one involved in, interested in becoming involved in, or issues among existing not-for-profi ts and the consolida- wanting to learn more about historic preservation. With tion and merging of other organizations, such as the its intentionally broad focus, successful implementation recent consolidation of the Landmark Society of the Ni- of the plan will clearly depend on considerable initiative agara Frontier and Preservation Coalition of Erie County and strategic collaboration among many new and existing to form the new Preservation Buffalo Niagara. The popu- preservation partners, including practitioners of environ- larity of do-it-yourself home improvement enterprises mental, historic preservation, land use, real estate, and such as Home Depot and Lowe’s, combined with the related areas of law. predominance of new construction, means that fewer people in the construction trades have preservation Vision for the Future skills, knowledge, or experience. Many of New York’s most accomplished and knowledgeable preservation The goals and implementing actions outlined in His- practitioners have been lost through retirement or death, toric Preservation at a Crossroads revolve around this ambi- 13 including Dorothy M. Miner, Esq., to whom this edition tious vision: of the New York Environmental Lawyer is dedicated. Efforts Historic preservation will be understood to protect historic and cultural resources of the recent as a rational approach for protecting irre- past and similar emerging issues are taking preservation placeable historic and cultural resources in new directions. and managing change, offering proven, Historic Preservation at a Crossroads responds directly fi scally conservative, cost-effective com- to the key themes and threats12 heard throughout its munity improvement strategies. Historic planning process and is based on the premise that his- preservation will be a signifi cant cata- toric preservation is in the best interest of the people of lyst for, and contributor to, New York New York State. It offers powerful, proven, but as yet un- State’s economic recovery, sustainability, derutilized community, economic development, and en- and smart growth efforts. Historic and vironmental stewardship strategies that should be more cultural resources, including National effectively incorporated into New York State’s revitaliza- Historic Landmarks, historic sites, his- tion, smart growth, and sustainability efforts. Historic toric districts, archeological resources, preservation strategies help communities manage change and heritage areas, will be protected and and make history, culture, and heritage strong building recognized as foundations of community blocks for revitalization, improvement, and growth. They pride, authenticity, and local character—
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 21 HISTORIC PRESERVATION
as important economic and educational • Expansion of services to communities, reinvigora- assets, tourism destinations, and commu- tion of the state historic site system, and better nity anchors that strongly complement integration of historic preservation into OPRHP’s and support New York State’s extensive overall mission and operations. arts, culture, education, recreation, en- • Improved stewardship of historic and cultural tertainment, and natural resources. New resources at the local, county, regional, and state York State will strengthen policies, laws, levels through historic preservation planning and and incentive programs that protect and preparation (and updating) of cultural resource sur- revitalize cities, villages, neighborhoods, veys. and rural hamlets as centers of invest- ment, infrastructure, education, culture, • Greater emphasis on and engagement in historic creativity, and entrepreneurial and social preservation education and training at all levels, in- interaction. cluding encouragement of preservation skills train- ing for the construction trades. Goals and Implementing Actions • Collaboration, coordination, and formation of stra- Seven goals and 35 implementing actions14 provide tegic partnerships with existing and new preserva- the strategic framework that will guide statewide efforts tion partners from the public, private, and not-for- to achieve this vision: profi t sectors, with particular emphasis on agency preservation offi cers, local and regional planning 1. Catalyze New York’s state and local economies us- organizations, and municipal and county govern- ing historic preservation, heritage development, ments. and tourism. • Adoption of new historic preservation and other 2. Expand incentives, technical assistance programs, incentive programs to place building rehabilitation and policies to stimulate rehabilitation and reuse and community revitalization on equal footing with in older and historic residential and commercial new development and construction. areas and to encourage the preservation and inter- pretation of archeological sites. • Improved data collection, analysis, and reporting about the economic, social, and environmental ben- 3. Integrate historic preservation into smart growth efi ts of historic preservation. policies, local and regional planning, and decision making to enhance economic competitiveness, • Improved management of and greater accessibil- community sustainability, and quality of life. ity to information about New York State’s historic, cultural, and archeological resources through im- 4. Strengthen collaboration and partnerships among proved use of the Internet and computer technolo- preservation and related organizations. gies, including increased deployment of geographic 5. Expand and strengthen education, outreach, and information systems.15 capacity building efforts. With its proven ability to stimulate community pride 6. Integrate historic and cultural resource preserva- and attract investment in neglected areas, historic preser- tion into New York’s sustainability and green vation will likely grow in importance as a tool for sustain- building efforts. ability, smart growth, and economic development. Revi- talizing existing town centers is at the heart of the smart 7. Increase awareness, identifi cation, interpretation, growth movement in the United States and such efforts preservation, protection, and stewardship of both will be complemented and strengthened through incor- prehistoric and historic sites and artifacts located poration of preservation strategies. Historic Preservation on private and state-owned lands. at a Crossroads will improve New Yorkers’ understanding Through collective achievement of the vision, goals, of preservation and help them achieve the numerous eco- and implementing actions, OPRHP seeks to increase nomic, social, and environmental benefi ts associated with public understanding and use of historic preservation preservation. strategies and to fully incorporate historic preservation into New York State’s planning, smart growth, and sus- Endnotes tainability efforts. It is anticipated that implementation of 1. The new plan will also be available on the N.Y.S. OPRHP Web site Historic Preservation at a Crossroads will improve statewide (http://www.nysparks.state.ny.us/shpo/). The N.Y.S. OPRHP historic preservation efforts and result in: Field Services Bureau (also known as the New York State Historic
22 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 HISTORIC PRESERVATION
Preservation Offi ce, or NYSHPO) prepares a comprehensive state Historic Preservation Plan Memoranda #3. These memoranda are historic preservation plan approximately every fi ve years as part available at http://www.nysparks.state.ny.us/shpo/planning/ of its responsibilities under the National Historic Preservation involved.htm or upon request. Act of 1966, as amended; Public Law 89-665, 16 U.S.C. 470, § 6. See Anthony C. Wood, Preserving New York: Winning the Right to 101(b)(3)(C)—State Historic Preservation Programs (an electronic Protect a City’s Landmarks (New York: Taylor & Francis, Inc.) 2007 copy can be downloaded at http://www.achp.gov/nhpa. and New York [City] Preservation Archives Project at http:// html). Other responsibilities include: directing and conducting www.nypap.org/ (last viewed April 7, 2009). a comprehensive statewide survey of historic properties and maintaining inventories of such properties in cooperation with 7. See Preservation Vision NYC at http://www.preservationvision- other federal and state agencies, private organizations, and nyc.org/ (last viewed April 7, 2009). individuals; identifying and nominating eligible properties 8. See New York State Council on the Arts, Cultural Blueprints to the National Register of Historic Places and otherwise program, at http://www.culturalblueprints.co.cc/ (last viewed administering applications for listing properties on the National April 7, 2009). Register; administering the state program of federal assistance for historic preservation within the state; advising and assisting, 9. See Erie Canalway National Heritage Corridor’s Preservation and as appropriate, federal and state agencies and local governments Management Plan, which can be downloaded at http://www. in carrying out their historic preservation responsibilities; eriecanalway.org/about-us_preserve-manage.htm (last viewed cooperating with the Secretary of Interior, the Advisory Council April 7, 2009). on Historic Preservation, and other federal and state agencies, 10. New York State Historic Preservation Act of 1980 (Parks, local governments, and organizations and individuals to ensure Recreation and Historic Preservation Law Article 14; General that historic properties are taken into consideration at all levels Municipal Law Article 5-K; Public Buildings Law § 60). Additional of planning and development; providing public information, state and federal laws relating to cultural resource management education and training, and technical assistance in historic and protection include: the New York State Environmental Quality preservation; cooperating with local governments in the Review Act (SEQRA); New York State Education Law, Section development of local historic preservation programs and assisting 233 (1958); and the Indian Cemetery or Burial Grounds Law; the local governments in becoming Certifi ed Local Governments; Antiquities Act of 1906; the National Historic Sites Act of 1935; consulting with the appropriate federal agencies on federal the Reservoir Salvage Act of 1960; Department of Transportation undertakings that may affect historic properties, and the content Act of 1966; the National Environmental Policy Act of 1969; and suffi ciency of any plans developed to protect, manage, or the Historic and Archaeological Data Preservation Act of 1974; to reduce or mitigate harm to such properties; and advising and American Indian Religious Freedom Act; Archaeological Resources assisting in the evaluation of proposals for rehabilitation projects Protection Act; Abandoned Shipwreck Act; Native American that may qualify for federal assistance. Graves Protection and Repatriation Act; Executive Order 11593: 2. Preparation of state historic preservation plans is overseen by Protection and Enhancement of the Cultural Environment (1971); the National Park Service (see National Park Service—Historic Executive Order 13006: Locating Federal Facilities on Historic Preservation Planning at http://www.nps.gov/history/hps/ Properties in Our Nation’s Central Cities (1996); and Executive pad/). All state historic preservation plans must also be formally Order 13287: Preserve America (2003). approved by the National Park Service. 11. See http://www.nysparks.state.ny.us/shpo/certified/certified_ 3. The plan preparation process provides a basis for information local.htm and http://www.nps.gov/history/hps/clg/ (last sharing, discussion, and thought regarding needs, issues, and viewed April 7, 2009). Established by a 1980 amendment to the opportunities, resulting in blueprint for action. Required elements National Historic Preservation Act of 1966, the CLG program of the plan include public input, an overview of New York is a nationwide initiative that directly links a community’s State’s historic and cultural resources, an analysis of historic preservation goals to state and federal preservation programs. Any preservation activities within the state, and an action plan. The city, village, town, or county can be a CLG, once the New York plan also includes information about what historic preservation State Historic Preservation Offi ce (N.Y.S. OPRHP Field Services is, why it is important to New York State, the various organi- Bureau) determines that it meets state and federal standards for zations and professions involved in preservation, and an the administration of local historic preservation programs. overview of New York State’s historic and cultural resources. 12. Key themes included the need for improved leadership and 4. More than 1,000 people participated in the preservation planning advocacy, coordination and collaboration, education and training process through meeting participation, review of related at all levels and among various preservation partners and memoranda and plan draft materials, and submission of written constituencies, historic resource identifi cation and protection, comments, including mayors, town supervisors, state legislators, historic preservation planning, funding and incentives, outreach other municipal elected offi cials and staff, state agency staff, news and awareness, development of a state version of the National media, preservation students, realtors, K-12 teachers and college Trust for Historic Preservation’s “Main Street” program, proactive professors, representatives of historic houses and other museums, development of guidelines and standards, green building and heritage areas and scenic byways, archeologists, preservation sustainability, and capacity building and support. organizations, municipal historians, arts organization staff, 13. The vision statement has been abbreviated slightly for this article developers, architects, planners, community and economic but can be read in its entirety in the plan. development professionals, lawyers, interested individuals, and 14. The 35 implementing actions are described in detail in the plan. many others. 15. Federal Transportation Enhancement Program funds have been 5. The public participation process is briefl y described in the awarded to N.Y.S. OPRHP for this purpose. plan; a more detailed description can be found in State Historic Preservation Plan Memorandum #1. The extensive and wide- ranging comments from the public participation process were Amy E. Facca is a Preservation Planner at the New grouped into a series of key themes and threats. A detailed discussion of the key themes and threats is provided in York State Offi ce of Parks, Recreation and Historic Pres- State Historic Preservation Plan Memorandum #2. Extensive ervation. background and supporting information is presented in State
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 23 TRIBUTE TO DOROTHY MINER Dorothy Miner Defended Our Architectual Heritage By Philip Weinberg
Dorothy Miner, whose passing is a great loss to en- Determination was indeed the key word for Dorothy. vironmental law in New York, embodied the voice of Together with the New York City Corporation Counsel’s historic preservation for the past three decades and more. gifted lawyers—Kevin Sheridan and now Chief Assistant As general counsel to New York City’s Landmarks Preser- Corporation Counsel Leonard Koerner—and the amici she vation Commission, she ably and imaginatively defended helped orchestrate, she planned and executed a brilliant, our architectural heritage from a series of challenges, and multi-layered defense that led to Justice Brennan’s time- her impassioned defense of Grand Central Terminal di- tested Supreme Court decision. rectly led to the U.S. Supreme Court’s decision—itself a landmark—in Penn Central Transp. Co. v. City of New York, protecting preservation laws from constitutional chal- “Determination was indeed the key word lenge and eloquently justifying their importance. for Dorothy. . . . [Her] untimely passing is a loss to all who care about historic “[Dorothy] ably and imaginatively preservation.“ defended our architectural heritage from a series of challenges, and her impassioned Following Penn Central, Dorothy advised the Com- defense of Grand Central Terminal directly mission and strategized with the Corporation Counsel’s lawyers to successfully defend St. Bartholomew’s magnif- led to the U.S. Supreme Court’s decision— icent Park Avenue church, Staten Island’s Greek-revival itself a landmark—in Penn Central Transp. Sailors’ Snug Harbor, and numerous other architectural Co. v. City of New York . . .” and historic gems. After leaving the Commission, she worked tirelessly—always with zeal tempered by hu- mor—advising the Municipal Art Society and teaching at I fi rst met Dorothy in the course of the Grand Central Columbia and Pace on preservation issues. litigation. I was writing an amicus brief for New York State while the suit brought by the terminal’s owner was Dorothy’s untimely passing is a loss to all who care in the New York Court of Appeals. The railroad com- about historic preservation. As with Christopher Wren, pany claimed the city’s denial of a permit to construct a designer of London’s St. Paul’s Cathedral, if you seek her 55-story offi ce building atop the historic station amounted monuments you need but to look around you. to an unconstitutional taking of its property. Dorothy as- sembled a phalanx of skilled lawyers in private practice, including the legendary Ralph Menapace, to help defend the city’s law and its determination.
Catch Us on the Web at WWW.NYSBA.ORG/ENVIRONMENTAL
24 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 TRIBUTETRIBUTE TO DOROTHY TO DOROTHY MINER MINER Dorothy Miner Award By Leonard Koerner
Dorothy Miner represented the noble public servant The oral argument was on April 17, 1978. Dorothy in her capacity as counsel to the New York City Land- was not able to sit at the counsel table because there were marks Preservation Commission from December 1975 only three chairs, which were occupied by Alan Schwartz, to 1994. During her tenure, Ms. Miner was instrumental L. Kevin Sheridan and me. Dorothy placed herself about in shaping the zoning laws as they were being applied two rows back. During the argument, one of the Justices to landmarks designation. I hope some of the vignettes mentioned a section of the Landmarks Law. Dorothy, tak- described below will demonstrate Dorothy’s abilities as a ing her cue, walked up to the lectern to provide me with counsel, her tenacity and her character. a copy of the Administrative Code which contained the applicable section. The court offi cer immediately escorted As with Professor Phil Weinberg, who has also writ- Dorothy back to her seat and informed her that, if this ten a note in praise of Ms. Miner in this Journal, I met Ms. happened again, she would be evicted from the building. Miner in connection with the Grand Central Terminal case. In December 1975, the Appellate Division in a 3-2 decision had upheld the designation of Grand Central “Dorothy Miner represented the noble Terminal as a landmark. Dorothy had collaborated with public servant in her capacity as counsel the New York City Law Department appellate attorney, Nina Gershon, and her supervisor, L. Kevin Sheridan. to the New York City Landmarks Dorothy was an active participant in the preparation of Preservation Commission from December the brief. After the decision in the Appellate Division, 1975 to 1994. . . . [She] was instrumental Nina Gershon left the Appeals Division, and I inherited in shaping the zoning laws as they were the case. Dorothy was like no other counsel to an agency with whom I had contact. She was extremely helpful in being applied to landmarks designation.” the preparation of the brief to the New York State Court of Appeals and in anticipating questions that might be After the Supreme Court ruled in the Grand Central asked during oral argument. Indeed, after the oral argu- Terminal case and established the propriety of the des- ment Dorothy continued on the bus ride from Albany to ignation of individual buildings, the Law Department New York, to explain all the arguments we could have handled many signifi cant landmark cases. These included made if we had been given 2½ hours instead of approxi- the Meeting House of the Society of Ethical Culture of the mately 40 minutes. City of New York (1980), Church of St. Paul and St. An- In December 1977, the Supreme Court accepted the drew (1986), the Community House at St. Bartholomew Grand Central Terminal case. In January 1978, Ed Koch (1990), 22 Broadway theaters (1991) and the Four Seasons became Mayor and selected Alan Schwartz as Corpora- Restaurant (1993). In each case, Dorothy was actively tion Counsel of the City of New York. Soon after Mr. involved in formulating the arguments at the trial and ap- Schwartz was appointed, a delegation of lawyers from pellate levels. large fi rms in New York City met with Mr. Schwartz to The Law Department of the City of New York gives request that the city’s position in the Supreme Court be an award each December for outstanding service as a briefed and argued by members of one of the fi rms. The counsel to a City agency. The fi rst recipient was Doro- case had attracted a great deal of attention, and it would thy Miner. The award is now called the Dorothy Miner have been understandable if Dorothy had expressed a award. This says it all about Dorothy’s service to the City preference for the handling of the matter by the private of New York and her immense contribution to the devel- fi rm. Instead, Dorothy aggressively supported my han- opment of the landmarks law. dling of the case, and Alan Schwartz concurred.
We then began the arduous task of preparing the Leonard Koerner is Chief Assistant and Division brief. This included the review of a fi nal draft for over Chief of the Appeals Division, New York City Law De- eight hours in a print shop. Dorothy’s tenacity had now partment. been well-established and would be repeated over the years in which she dealt with our cases.
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 25 TRIBUTE TO DOROTHY MINER In Memoriam: Dorothy Miner Dorothy Miner, 72, Legal Innovator, Dies By David W. Dunlap
Dorothy Marie Miner, who developed legal protection under which it designated the 17th-century street plan of for historic landmarks nationwide in her longtime role as Lower Manhattan as a landmark in 1983. That stopped counsel to the New York City Landmarks Preservation developers from further eradicating the neighborhood’s Commission, died on Tuesday in Manhattan. She was 72 characteristically irregular blocks. and lived in Morningside Heights. When the commission voted in 1983 to permit the The cause was complications of lung disease, said her demolition of the former Mount Neboh Synagogue at 130 brother Dr. Robert Dwight Miner. West 79th Street because it created a fi nancial hardship for its owner, Ms. Miner wanted it understood that the syna- She played an important role in the critical 1978 case of gogue had not been stripped of its landmark status. Penn Central Transportation Company v. New York City, which upheld the landmark status of Grand Central Terminal and “There was no fi nding today or at any other time that set national precedents. this wasn’t a signifi cant building,” she said. “It will be, un- til the end, a designated landmark. Intimately familiar with preservation law, Ms. Miner was meticulous when making her case—another way to She helped defend the designation of St. Bartholom- put it was that she was a fi erce, immovable stickler—and ew’s Church on Park Avenue against a challenge by the could infuriate allies as well as adversaries with her insis- parish, which argued that landmark status unconstitution- tence on principle and procedure. ally interfered with its freedom of religion and its property rights. The city won in the federal Court of Appeals in “We spent eight hours arguing over every sentence,” 1990. Leonard Koerner, the chief assistant corporation counsel of New York City, said in recalling what it was like to work After 19 years with the commission, Ms. Miner was with Ms. Miner at the print shop on the legal briefs in the asked for her resignation in 1994 by Jennifer J. Raab, who Penn Central case. was then chairwoman. Ms. Raab said the commission’s regulatory and enforcement work “would benefi t from a Eventually, the United States Supreme Court upheld fresh eye.” the landmark designation of the terminal against a chal- lenge by Penn Central, which owned the building and But preservationists took a darker view. Professor Rob- asserted that landmark status effectively amounted to an inson said he invited Ms. Miner to join him at Pace after unconstitutional taking of property by the government. Mayor Rudolph W. Giuliani “decided he would accede to the real estate industry and press to remove her as coun- Because of the New York commission’s victory, its “in- sel.” Ms. Miner also became an adjunct associate professor novations became standard practice for landmarks com- in the Graduate School of Architecture, Planning and Pres- missions all around the country,” said Nicholas A. Robin- ervation at Columbia. son, a professor at the Pace University School of Law, with whom Ms. Miner taught. Although she had been in the hospital since early sum- mer, Ms. Miner continued to collaborate on a preservation Ms. Miner was born on Aug. 14, 1936, in Manhattan. law class with Professor Robinson until a month ago, even Her father, Dwight C. Miner, was a professor of history planning an annual expedition that begins at Grand Cen- at Columbia University. She received a bachelor’s degree tral Terminal. from Smith College in 1958, a law degree from Columbia in 1961 and a degree in urban planning from Columbia in “I’ll be doing the fi eld trip this Saturday,” he said, 1972. “with her tape-recorded voice.”
She married James Edward O’Driscoll in 1970. He died From The New York Times, October 23, 2008. Copyright 2008 in 1993. She is survived by Dr. Miner, of Montvale, N.J., The New York Times Company. All rights reserved. Used by and another brother, Richard Thomas Miner, of Sparta, N.J. permission and protected by the Copyright Laws of the United Ms. Miner was named counsel to the landmarks com- States. The printing, copying, redistribution, or retransmission of mission in 1975 and helped devise the legal framework the Material without express written permission is prohibited.
26 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 Clean and Green: Remediating Contaminated Sites More Sustainably By Walter Mugdan1
In recent years there has been growing interest in a The basic choice of remedial technology may have variety of “green“ design and construction practices and the biggest impact on energy use in a cleanup techniques. The goal of these is to reduce the overall envi- project. Many types of remedial action are inher- ronmental footprint—with a special focus on the carbon ently energy-intensive. For example, if ground footprint—of the built environment.2 “Green remediation“ water remediation is effectuated through a tra- has the same objectives with respect to the cleanup and ditional pump-and-treat system, a substantial reuse of contaminated sites. amount of electricity will be required to run the Hazardous site remediation is, of course, fundamen- pumps and the treatment plant, typically for years tally an effort to improve the environment by eliminating or even decades. Similarly, remediation that in- toxic wastes and/or cutting off the pathways through volves extensive soil excavation followed by treat- which humans and other organisms may be exposed to ment or transportation for disposal also demands dangerous levels of those wastes. Nevertheless, the work large amounts of energy in the form of fuel for itself has its own environmental footprint. Collateral en- excavation and transportation equipment. vironmental impacts from remedies include energy use, Less Energy-Intensive Remedies: There may air emissions, water discharges, generation and manage- be suitable remediation techniques that use dra- ment of waste materials including redeposit of hazardous matically less electricity or fuel. Examples are substances, topographical and hydrological changes in bio-remediation and phyto-remediation. Bio- land, and short- and long-term changes in land use. Many remediation relies on micro-organisms, fungi or of these can be mitigated by considering alternative ap- other biota to remove contaminants from the envi- proaches. Some alternatives have been discovered through ronment and/or convert them through metabolic the search for green construction approaches and now processes into harmless or less harmful constitu- have established track records which have proven to be ents.4 Phyto-remediation is a special subclass of competitive with traditional options. In fact, best manage- bio-remediation, in which certain kinds of green ment practices (BMPs) for green remediation have begun plants (including various types of grasses, shrubs to emerge. However, these results are not widely known, and trees) are used to extract contaminants from and awareness needs to be raised to advance consider- soil or water.5 In some cases the plants concentrate ation of these alternatives the contaminants and are then harvested for prop- EPA’s Offi ce of Solid Waste and Emergency Response er disposal. In other cases the plants render the is working with a variety of public and private partners contaminants less hazardous, or move them out to identify, develop and foster the use of BMPs for green of the ground and into the atmosphere through remediation. The agency has prepared an online “tool- transpiration. box“ that remedial project managers (RPMs) and others Energy-Effi cient Equipment: While bio- and involved in environmental remediation can consult for phyto-remediation are less energy-intensive tech- ideas on how to minimize the environmental impact of the niques, the range of circumstances in which they 3 cleanup project. are suitable is still somewhat limited.6 Where a The following is a survey of a number of areas where traditional pump-and-treat remedy continues to opportunities exist to reduce signifi cantly the environmen- be the best remediation tool, there are neverthe- tal footprint of cleanups: less a range of options for reducing its impact. For example, high-effi ciency, variable speed pumps Energy use: Like almost any other human en- can be used for groundwater extraction and treat- deavor, remediation work requires energy. Much ment plant operations. of it is electric—from running the lights in the construction management trailer to running large Buying and/or Making Renewable Energy: In pumps for decades in a major pump-and-treat most states the purchaser of power from the grid cleanup. Construction and transportation equip- can opt to buy electricity made from renewable ment also requires energy, typically fossil fuels— sources, thus nearly eliminating the project’s earth moving equipment, excavators, dredges, electricity-related carbon footprint.7 There is often trucks, railway locomotives, and barges all use a choice of electricity generated entirely by wind, energy. And all energy use is associated with air or generated from a mix of renewable sources pollution emissions, including in particular green- including small-scale (and thus environmentally house gas (GHG) emissions.
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 27 more friendly) hydro. The cost differential is gen- ing rigs, generators, etc.—are powered by diesel erally small, in the range of a penny or two per engines. While the very newest diesel engines are kilowatt hour. subject to recently established, stringent emission- control requirements, the vast majority of existing In some situations electricity can be generated on- diesel engines continue to be the source of signifi - site using wind, solar or geothermal energy. For cant quantities of pollutants. Chief among these example, at the former St. Croix Alumina site in are very small particulates (known as PM2.5, the U.S. Virgin Islands, electricity generated on- which stands for particulate matter smaller than site by several windmills and solar arrays is used 2.5 microns in size15). These are the soot particles 8 Similarly, at the BP Petroleum to drive pumps. that make up the familiar black puff of smoke that site in Paulsboro, N.J., a 275-KV solar fi eld powers is associated with diesel engines. six recovery well pumps, aerators and blowers.9 In appropriate settings fans for vapor intrusion Because diesel engines are designed and built to mitigation systems can be powered by roof-top be very durable, they tend to remain in service for solar panels or wind-driven vacuum systems, as a very long time—much longer than automobile at the former Ferdula Landfi ll in Frankfort, N.Y.10 engines. Consequently, the benefi ts of EPA’s new, At closed landfi lls, landfi ll gas (methane) can be stringent emission control requirements will take captured and used for energy production, as at decades to be fully realized. With a concentration the Operating Industries Landfi ll in Monterey of diesel equipment working all day long, a major Park, CA.11 remedial project site can therefore be a signifi cant source of dangerous air pollutants, creating legiti- Green Concrete and Other More Sustainable mate concerns for neighboring communities (as Materials: Even the choice of materials for a re- well as the workers themselves). Because a dis- medial project can have a profound impact on the proportionate number of contaminated sites are project’s overall carbon footprint. For a project located in or near densely populated areas and/ that requires a signifi cant amount of concrete or low-income or minority communities, whose (e.g., for the construction of an on-site treatment citizens are already exposed to high levels of air plant), “green concrete“ can be selected instead emissions, the added burden of diesel emissions of ordinary concrete. Concrete is typically made from a long-term remedial project in such a com- by mixing sand and/or gravel with water and munity is a matter of particular concern. Portland cement, which hardens and binds it to- gether. Manufacturing Portland cement is energy- EPA’s “Clean Construction USA“ program pro- intensive: making a ton of the material results in motes voluntary reductions of air pollution emis- the emission of nearly a ton of carbon dioxide. sions from construction equipment through a Indeed, the concrete industry accounts for 5% or variety of strategies, ranging from the easy and more of the world’s greenhouse gas emissions.12 inexpensive to the somewhat more costly. As it happens, coal combustion products—that is, Proper Maintenance and Less Idling: First, and coal ash—from coal-fi red power plants and other most obvious, operators can and should properly coal-burning installations can be used to replace maintain their equipment. Second, operators and a signifi cant portion of the Portland cement that site managers can limit idling time. This should be would normally be needed for use in concrete. equally obvious, and yet it is customary for diesel The ash has many of the same pozzolanic, or engines to be left running for extended time peri- binding, properties as cement, and in fact actu- ods even when not required. Both of these strate- ally performs better than cement in some respects. gies will save money by reducing fuel use and The coal ash would otherwise have to be disposed extending engine life. of in a landfi ll.13 Every ton of coal ash used in Cleaner Fuels: concrete offsets about one ton of Portland cement Next, operators can choose to use and thus reduces GHG emissions by nearly a ton. cleaner fuels. Historically, diesel fuel contained Moreover, concrete made with coal ash is actually signifi cant quantities of sulfur, which is emitted less permeable, more durable and stronger than as fi ne particulates and sulfur oxides (another concrete made with Portland cement alone.14 troublesome air pollutant). EPA has recently re- quired ultra-low sulfur diesel fuel (ULSD) to be And of course, any on-site facilities can also use widely available for use in on-road vehicles, and better insulation against hot or cold weather, and by 2010 it will also be required for use in non-road energy effi cient lighting and electronics. engines. In the meantime, however, operators who are not yet legally required to use ULSD can Air Emissions: Construction equipment used on- easily do so for only a modest additional cost— site will typically emit air pollutants. Most heavy typically 10 to 20 cents per gallon, which will equipment—excavators, trucks, locomotives, drill-
28 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 yield a reduction of 5% to 9% in particulate emis- drology. Effl uent from a treatment plant can affect sions. Biodiesel—diesel fuel made entirely from the quality of the surface water body into which it renewable, organic materials such as soybeans is discharged. Large areas of impervious surface or even used cooking oils—can also be used, and (used, e.g., for capping contaminated soils) can burns signifi cantly cleaner than conventional die- increase stormwater runoff and exacerbate urban sel, with a 20% biodiesel blend (known as “B-20”) combined sewer and storm sewer overfl ows. Dif- yielding reductions of up to 12% in particulate fering approaches to remediation and manage- emissions. Use of biodiesel also results in reduced ment of contaminated sediments in wetlands, GHG emissions.16 lakes, rivers, harbors and estuaries will have dif- fering impacts on the human users and the fl ora Repowering: Owners of diesel construction and fauna. equipment can elect an accelerated replacement cycle, thus bringing newer (and cleaner) equip- There are many ways to reduce these impacts. ment onto a major job site. Or, owners can “re- Treated or grey water can be used to irrigate veg- power“ their equipment—i.e., replace just the etative cover on site; biosolids from a treatment engine with a newer, cleaner one. system can be used for soil amendment. Reinjec- tion of treated groundwater can be explored.19 Retrofi t: Finally, owners can retrofi t diesel engines Pervious pavement can be used in non-contami- with pollution control equipment. There are two nated areas of the site. Sites can also be regraded major types of retrofi t equipment, diesel oxida- to incorporate berms and swales to optimize tion catalysts (DOCs) and diesel particulate fi lters management of stormwater. At the De Sale Refor- (DPFs). DOCs for non-road equipment are rela- estation Area in western Pennsylvania, acid mine tively inexpensive—ranging from $500 to $2,000 drainage is being treated passively through a se- depending on engine size and confi guration—and ries of natural, gradient-driven engineering steps remove about 30% of particulate emissions. DPFs involving settling ponds, vertical fl ow ponds, and are somewhat more expensive—ranging from constructed wetlands.20 Even a landfi ll cap itself $3,000 to $10,000 depending on engine size and can, in appropriate circumstances, be engineered confi guration—but remove 90% or more of par- to have different hydrologic characteristics. For ticulates. DOCs or DPFs for larger and unusual example, at Fort Carson, a federal facility in semi- engines will be in the higher ranges (although the arid Colorado, a 15-acre landfi ll was capped with cost will always be small by comparison with the a four-foot thick monolithic evapotranspiration cost of the piece of construction equipment on cover and revegetated with drought-resistant na- which it is being installed). tive prairie grasses. In addition to these ecological Contract specifi cations for projects that involve benefi ts, the approach also resulted in signifi cant signifi cant diesel emissions can require clean die- construction and O&M cost savings.21 sel fuel and equipment to be used by contractors. Site Reuse. The post-remediation use for a site Doing so can be helpful in addressing the legiti- will also have an environmental impact, which 17 mate concerns of neighboring communities. can and should be considered in the remedial Just over the horizon is one of the most promising planning stage. Consideration can be given to developments in diesel technology, the hydraulic maintaining a formerly contaminated site as hybrid. Developed and patented by EPA scien- open space. If so, the remedy can be designed to tists, but available to any and all manufacturers maximize the ecological productivity of the site— for free, it is expected to reduce diesel fuel use wetlands, surface water and other habitats can and associated emissions by 50%–70% when fully be restored, and native species can be replanted. developed. Introduced in mid-2006, the technol- For some sites, it may not be realistic to remediate ogy has been in pilot use for over a year on a large them suffi ciently so that unrestricted residential or United Parcel Service (UPS) truck. In September, even commercial use can be permitted. Allowing 2007, a further pilot application was announced such sites to “return to nature“ while maintaining by EPA Administrator Stephen Johnson, this time use or access restrictions may be the only afford- on a pair of “yard hostlers, “ diesel trucks that able remedial solution, but this approach can also move freight containers around port facilities. In confer very signifi cant ecological benefi ts. One late 2008 UPS ordered seven additional trucks of the best known examples is the former Rocky with hydraulic hybrid drive, and the technology is Flats nuclear weapons plant site near Denver, also being adapted for use in military Humvees.18 Colorado, which in 2005 became a National Wild- life Refuge.22 For capped landfi lls, which must be Water Impacts. Extensive pumping of ground kept perpetually free of trees and other vegetation water can deplete an aquifer and change local hy- that could harm the cap, these sites may be able to
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 29 be reused as solar energy farms. Indeed, many re- 2. the potential impacts on workers during the reme- mediated sites may be suitable for the generation dial project; and of renewable wind or solar energy.23 A number of 3. the “[p]otential environmental impacts of the reme- proposals for solar farms on closed landfi lls have dial action and the effectiveness and reliability of recently been fl oated, including several in New mitigative measures during implementation.” Jersey.24 Finally, if a site is to be reused for com- mercial or residential purposes, the new develop- Many of the green remediation techniques described ment can itself be built using “green construction above can easily be justifi ed using these considerations. “ techniques, with energy effi ciency, water effi - For example, use of clean diesel equipment clearly reduces ciency, material reuse, etc., in mind.25 short-term risks to nearby residents from diesel emissions and also protects workers from those same emissions, con- Legal Considerations siderations No. 1 and No. 2. Use of green concrete, pur- chase of renewably generated electricity from the grid30 or Many green remediation techniques and practices can use of on-site renewable energy generation—all of which yield savings in the cost of site remediation. Examples in- result in reduced GHG and other air emissions associ- clude the on-site generation of solar or wind energy, or the ated with a remedial construction project—self-evidently use of engineered wetlands to treat contaminants. Some reduce the real environmental impacts of the remedial ac- green remediation elements will, however, add to the tion, consideration No. 3. overall costs of remediation. Examples include purchas- ing electricity off the grid that has been generated through Additionally, the ninth criterion, one of the two modi- renewable means (which may cost a penny or two more fying criteria, is “community acceptance,” which provides per kilowatt) or requiring contractors to use clean diesel. that support or opposition from interested members of the Some techniques, like the use of “green concrete,“ may be community should be considered in selecting a remedial cost-neutral or even generate savings, but fi nding a local alternative.31 If properly presented with factual informa- supplier may present a challenge. tion about the short-term risks and impacts of different alternatives, it is likely that community members may It is fair to ask whether EPA can use, or require the use indeed express strong views for or against certain alterna- of, such green remediation techniques even in instances tives. Again, a good example is the use of clean diesel. If where that use increases overall costs or imposes an un- residents near a remedial construction site are presented wanted administrative burden. The question applies both with information about the quantity of diesel emissions to to instances where EPA pays for the site remediation work which they will be exposed using conventional equipment under the Superfund program and those instances where compared with, say, equipment retrofi tted with pollution a potentially responsible party (PRP) pays for the work controls and using ultra-low sulfur diesel fuel, it is hard to pursuant to an enforceable instrument like an administra- imagine that those residents would not have a very strong tive order or a consent decree. preference for the latter. The author submits that the answer, in both cases, is Of course, there are elements of green remediation likely to be yes, at least with respect to the actual construc- that EPA presumably cannot require an unwilling PRP to tion and operation of a remedial project, provided that implement or pay for. For example, the post-remediation there are demonstrable environmental benefi ts from the use of a site is properly the concern of the site owner, sub- green remediation technique in question. The National Oil ject to local zoning and land-use restrictions. If the owner and Hazardous Substances Contingency Plan (NCP) is the of a closed landfi ll chooses to build a golf course, EPA EPA regulation that governs, inter alia, how Superfund re- cannot force that owner to instead build a solar farm. Nev- medial project alternatives are to be evaluated and select- ertheless, the author contends that EPA can properly take ed.26 The NCP sets out nine criteria for evaluation of such 27 steps during the remediation to ensure that the site, once options. Two of these are “threshold criteria” that each cleaned, is suitable for appropriate forms of “green“ reuse, alternative must meet in order to be eligible for selection; thus preserving that future use option. fi ve more are “primary balancing criteria” that are used to evaluate among alternatives that satisfy the threshold cri- Several federal Executive Orders (EOs) also point EPA teria; and the fi nal two are “modifying criteria.”28 in the direction of requiring steps to green its remedial program. A leading example is EO 13423, “Strengthening Among the balancing criteria is “short-term effective- 29 Federal Environmental, Energy and Transportation Man- ness.“ This criterion provides that the short-term impacts agement“ (January 24, 2007).32 This EO establishes targets of alternatives shall be assessed considering, inter alia— for energy use reduction by federal agencies, and directs 1. the “short-term risks that might be posed to the the heads of federal agencies to, inter alia, establish “sus- community during implementation of an alterna- tainable practices for . . . energy effi ciency, greenhouse gas tive”; emissions avoidance or reduction, and petroleum prod- ucts use reduction. . . .“33
30 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 Endnotes manufacture of Portland cement accounts for 80% or more of the greenhouse gas emissions associated with concrete. J.M. Flower & 1. Any opinions expressed in this article are the author’s own, and J. Sanjayan, Greenhouse Gas Emissions Due to Concrete Manufacture, do not necessarily refl ect the position of the U.S. Environmental The International Journal of Life Cycle Assessment, July, 2007, Protection Agency.
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 31 recharge basins—one primary basin, and a secondary basin to catch the overfl ow (which has never been used)—from which it percolates back into the ground. The only maintenance required The New York is to remove the leaves in the fall and/or scrape the surface when the basin begins to fi ll up. Interestingly, the remedy originally Environmental selected called for the treated water to be discharged to a bay of Long Island Sound. This met with strong public resistance, and the recharge option was subsequently adopted instead. Even Lawyer is also at sites where the hydrogeology makes it impossible to reinject all the water, partial reinjection is an option. At the American available online Thermostat site, in the Town of Catskill, Greene County, N.Y., groundwater is processed at the on-site treatment plant at a rate of approximately 40 gallons per minute (gpm). About a third of the treated water—13 gpm—is reinjected into the bedrock aquifer through nine injection wells, at depths varying from 175 feet to 425 feet. The rest of the water is discharged into a surface creek. The low reinjection rate is related to the low capacity of the fractured bedrock aquifer. 20. See
32 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 Citizens’ Environmental Coalition Inc. v. New consider only contamination from on-site sources,” con- York State Department of Environmental travenes ECL § 27-1415 because it excludes properties con- Conservation, 57 A.D.3d 1279 (2008) taminated by off-site contamination. The Citizens’ Environ- mental Coalition claimed that because the legislature did not include an express exclusion for off-site contaminated Facts properties in ECL § 27-1415 and because ECL § 27-1415 In 2003, the legislature passed the Brownfi eld Cleanup broadly defi nes a Brownfi eld site as “any real property,” Program Act which was meant to encourage the cleanup the exclusion of these off-site contaminated properties and redevelopment of Brownfi eld or hazardous waste from 6 N.Y.C.R.R. 375-3.3(a)(2) violates ECL § 27-1415.5 sites.1 Under this act, developers receive substantial tax credits and a release from future liability in exchange for Reasoning cleaning up Brownfi eld sites. The Department of Environ- mental Conservation (DEC) is vested with the authority to The court noted that when the question presented is implement the statute, as well as the authority to promul- one of strict legal interpretation, the practical construction gate regulations. In 2006, the DEC adopted fi nal regula- of the statute by the agency charged with implementing it, tions under authorization from this Act and the Citizens’ if not unreasonable, is entitled to deference by the courts.6 Environmental Coalition Inc. commenced this Article 78 The Citizens’ Environmental Coalition Inc.’s interpreta- proceeding seeking review of these regulations and chal- tion of the statute is too narrow. The legislature endowed lenging subpart 375-3 and 375-6.2 Subpart 375-3 governs the DEC with the power to prescribe rules and regulations cleanup eligibility and site-specifi c remedial programs and consistent with the enabling legislation and the DEC ratio- subpart 375-6 establishes generic tables of contaminant- nally determined, consistent with the statute’s mandate, specifi c soil cleanup objectives (SCOs). that site specifi c programs in conjunction with SCOs en- sure protections of public health and environment and that The Supreme Court granted the petition to the extent the development of generic SCOs for surface water, aquatic of vacating 6 N.Y.C.R.R. 375-3.8(e)(4)(iii), which allowed resources and indoor air would have been impractical and exposed surface soils to remain at background levels in ineffective to achieve the protection of public health. certain instances. As to the remaining causes of action, the court dismissed the petition. The Citizens’ Environmental Sites that do possess surface waters and aquatic re- Coalition Inc. appealed. sources display a wide range of characteristics affecting the degree to which soil contamination may impact these resources, such that generic SCOs would be inappropriate Issues and insuffi ciently protective at many sites. Additionally, ECL § 27-1415(6)(b) provides that SCOs “shall be pro- contamination of surface water, aquatic resources and in- tective of public health and the environment pursuant to door air is extensively addressed in regulations governing subdivision one of this section.”3 ECL § 27-1415(1) states site-specifi c remedial programs, which require mitigation that “all remedial programs shall be protective of public of impacts on these resources as an element of the cleanup health and the environment including but not limited to at any site. groundwater . . . , drinking water, surface water and air (including indoor air) . . . and ecological resources, includ- The court held that the DEC, in its area of expertise, set ing fi sh and wildlife.”4 The fi rst issue addressed here was up these rules and the Citizens’ Environmental Coalition whether DEC regulations 6 N.Y.C.R.R. 375-3 and 375-6 Inc. failed to establish that they were required to develop violate ECL § 27-1415(6) by setting up general SCOs that SCOs to account for soil contamination impacts on surface do not expressly account for impacts on soil contaminants water, aquatic resources or indoor air or that the chal- on surface water, aquatic resources or effects of soil vapor lenged regulations do not adequately protect the public intrusion on indoor air in buildings. health and environment, including the resources at issue. The court rejected the argument that the DEC did not com- The second issue was whether 6 N.Y.C.R.R. ply with ECL § 27-1415(6)(b)(v) because it failed to identify 375-3.3(a)(2), which specifi es that the DEC “shall and account for more stringent cleanup levels that may
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 33 have been achieved in prior remediations. The law requires Coalition of Watershed Towns v. United States that in developing SCOs, the DEC must consider “the Environmental Protection Agency, Docket Nos. feasibility of achieving more stringent remedial action ob- 07-2449-ag (L), 07-3912-ag (Con) (2008) jectives, based on experience under the existing state reme- dial programs, particularly where toxicological, exposure or other pertinent data are inadequate or nonexistent for a Facts specifi c contaminant.”7 Nothing in that statute requires the Petitioners are a confederation of towns (“Towns”) in DEC to perform a comprehensive analysis of all historical- the Catskill and Delaware watershed region of New York. ly achieved cleanup levels. Rather, the statute requires only They have actively negotiated and litigated against New that the DEC consider the feasibility of achieving more York City, New York State and the United States Envi- stringent SCOs in light of past experiences. ronmental Protection Agency (EPA) for many years. The Towns sought review of two actions regarding the imple- The court examined the record, which revealed that mentation of the Safe Drinking Water Act of 1974 (SDWA) the DEC complied with the statutory requirement that by U.S. EPA: (1) an April 25, 2007 letter from the EPA high- it must consider the feasibility of setting more stringent lighting the state’s non-compliance with certain EPA regu- SCOs in light of the adequacy of available data and stan- lations regarding administrative penalties and temporarily dards developed based on its experience. The court con- postponing the previously scheduled transfer to the state cluded that DEC used its expertise to develop SCOs for of primary enforcement responsibility (“primacy”) over the protection of human health and ecological resources the Catskill and Delaware watersheds until the state com- and did not act arbitrarily or capriciously and agreed with plies with the relevant regulations; and (2) a July 30, 2007 the Supreme Court that 6 N.Y.C.R.R. 275-3.3(a)(2) does not Filtration Avoidance Determination (FAD), which required contravene ECL § 27-1415. the city to spend additional monies on land acquisition in The court rejected the Citizens’ Environmental Coali- the Catskill and Delaware watershed regions. tion claim that 6 N.Y.C.R.R. 375-3.3(a)(2), which requires the DEC to “consider only contamination from on-site Issue sources” in determining which sites are eligible for the The issue addressed was whether the petitioners had program, contravenes the statute.8 Because of the lack of standing to sue under Article III of the Constitution.1 Lujan language in the statute directly addressing the issue, the v. Defenders of Wildlife established standing under Article statutory focus on removal of the source of contamination III has three elements: (1) an “injury in fact,” i.e., an inva- through remediation programs and separate enforcement sion of a legally protected interest that is “concrete and mechanisms where contamination has been caused by off- particularized . . . and [ ] actual or imminent, not conjec- site sources constitutes a rational determination that the tural or hypothetical,” that is (2) causally related (“fairly goals of the statute are best served by addressing contami- traceable”) to the challenged action and (3) likely to be nation at its source. redressed by a favorable court decision.2 The question ad- dressed was whether, even if the petitioners had suffered Conclusion an injury-in-fact, redress from a favorable court decision Since the DEC complied with ECL § 27-1415 in pro- was likely? mulgating the generic SCOs and the regulatory exclusion of properties contaminated by off-site sources, the court Reasoning rejected the contention that the regulations at issue were ir- The EPA argued that under the “case-or-controversy” rational and, thus, the partial dismissal of the petition was requirement of Article III of the Constitution, the Towns affi rmed. lack standing to bring this petition because they have not suffered any “injury-in-fact.” In response, the Towns have Christopher J. Palmese, 2009 proposed four injuries that, in their opinion, confer Article III standing: (1) breach of a Memorandum of Agreement Endnotes signed by the parties in 1997 (the MOA), which scheduled 1. See Brownfi eld Cleanup Program Act. the transfer of primacy for May 15, 2007 and capped the 2. See 6 N.Y.C.R.R. 375. city’s acquisition of land and easements in the Catskill and 3. See ECL § 27-1415(6)(b). Delaware watershed regions of New York at $300 million; 4. See ECL § 27-1415(1). (2) loss of an opportunity to have the state conduct a cost- 5. See ECL § 27-1415. benefi t analysis that would weigh the city’s land acquisi- 6. In re Village of Scarsdale v. Jorling, 91 N.Y.2d 507, 516 (1998). tion against the preservation of local “community charac- ter,” pursuant to the New York State Environmental Qual- 7. See ECL § 27-1415(6)(b)(v). ity Review Act;3 (3) an injury to the Towns’ “legal right to 8. See 6 N.Y.C.R.R. 375-3.3(a)(2). determine the future economic and planning goals for their * * * communities”; and (4) a shared interest in the city’s water supply.
34 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 Despite each side’s argument, the court raised, nostra HLP Properties LLC v. NYC Dept. of Environmental sponte, a related question about standing. The court, as- Conservation, 21 Misc. 3d 658, 864 N.Y.S.2d 285 suming that harms suffered as alleged were cognizable as injuries-in-fact, examined whether they were likely to be Facts redressed by a favorable court decision. “Redressability is the non-speculative likelihood that the injury can be rem- In this Article 78 application petitioners challenge re- edied by the requested relief.”4 “[I]t also must be likely, spondent’s determination denying petitioners’ application as opposed to merely speculative, that the injury will be to participate in the Brownfi eld Cleanup Program under 1 redressed by a favorable decision.”5 “Relief that does not Environmental Conservation Law. Petitioners seek a dec- remedy the injury suffered cannot bootstrap a plaintiff into laration that the Site at issue is a “brownfi eld site” within 2 federal court.”6 the meaning of the Brownfi eld Cleanup Program Act and that respondent’s decision was made in violation of lawful The court ruled that despite injury suffered by the procedure, was affected by an error of law, was arbitrary Towns, any relief that the court could provide is specula- and capricious and/or was an abuse of discretion. Fur- tive. Even assuming that the EPA was required by the thermore, petitioners seek an order annulling and vacating MOA to transfer primacy to the state in May 2007, as op- respondent’s decision and obliging respondent to accept posed to September 2007 when it was actually transferred, their application to the Brownfi eld Cleanup Program. Fi- the court found no basis for the conclusion that the Towns nally, petitioners seek an award of costs and disbursements would more likely than not be in any different position associated with this proceeding. than they are now. The site at issue, a 1.75-acre parcel of property located Furthermore, the court asserted that while the state in the West Chelsea part of Manhattan, is owner by peti- might have been required by state regulations and laws to tioner HLP Properties (HLP) and is currently an at-grade perform a cost-benefi t review of the substance of the July level parking lot. Petitioners seek to develop this parcel 2007 FAD, the Towns did not point to any evidence sug- into two residential and commercial high-rise towers. The gesting that the state’s analysis would have substantially parcel was occupied by a gas production facility for over differed from the EPA’s, or would remedy any injury al- sixty years, which resulted in the accumulation of signifi - leged by petitioners. The court found that the state’s inter- cant quantities of environmental contaminants in the sur- vention in this case on the side of the EPA and in support rounding land. Such contaminants include coal tar, volatile of the June 2007 FAD led to the conclusion that the state organic compounds (VOCs), semi-volatile organic com- would have promulgated substantially the same determi- pounds (SVOCs) and heavy metals. nation. In 1994, the Department of Environmental Conserva- tion (DEC) initiated an administratively created Volun- Conclusion tary Cleanup Program (VCP), issuing Voluntary Cleanup The court denied the Towns’ petition for review and Agreements (VCAs), which allowed parties to investigate entered judgment for the EPA. In making its decision, and clean up abandoned contaminated sites and to return the court took no position on whether the Towns met its those sites to productive use. In return for their cleanup injury-in-fact requirement. The court focused solely on efforts, the volunteers received protection against future li- whether a favorable court decision would have redressed ability arising out of the redevelopment of those sites. the Towns’ injury in a non-speculative manner. It was held In 2003, the New York State Legislature enacted the that a favorable court decision would not have redressed Brownfi eld Cleanup Program Act (BCPA) to encourage the the Towns’ injury in a non-speculative remedy. Therefore, voluntary cleanup of hazardous waste sites and to restore the U.S. Court of Appeals for the Second Circuit concluded those sites to productive use.3 Applicants who successfully that it could not address the merits of the petition because complete the remediation requirements would receive a the Towns lacked standing to sue under Article III of the Certifi cation of Completion, providing additional liability Constitution. limitations under the statute4 and enabling applicants to Scott Ross, 2009 benefi t from signifi cant tax credits.5 Because the BCPA codifi ed many of the existing VCP provisions, the DEC Endnotes allowed parties to transfer properties subject to VCP agree- 1. U.S. Const. Art. III. ments into BCPA, to terminate their VCP agreements and 2. 504 U.S. 555, 560 (1992). to apply for BCP or to continue to operate under existing 3. 6 N.Y. Comp. Codes R. & Regs. §§ 617 et seq. VCP agreements. 4. W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche L/P., __ F.3d __, No. In 2002, nonparty Con Edison received a VCP agree- 06-1664-cf, 2008 WL 5076825, at *4 (2d Cir. Dec. 3, 2008). ment for the site at issue, requiring the nonparty to inves- 5. Lujan, 504 U.S. at 561. tigate and clean up the site. Con Edison did not move to 6. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998). transfer the VCP agreement into the BCP program. Nev- * * * ertheless, HLP submitted its own BCP application in 2004
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 35 for the site and Con Edison objected to this application, criticism from multiple entities in this State, including the alleging that the property could not qualify as a BCP site New York State Bar Association Environmental Law Sec- while Con Edison’s 2002 VCP agreement for the same site tion.14 remained in effect. No further action was taken on the 2004 Most importantly, not only has the Legislature de- application. clined to adopt the DEC’s guidance factors in the ECL, In 2007, both nonparty Con Edison and HLP submit- the guidance factors are conspicuously missing from the ted separate BCP applications for the site, but both ap- DEC’s own regulations with regard to the BCP.15 Thus, the plications were denied. The DEC explained that it is not a court held that DEC’s use of guidance factors constitutes brownfi eld site because the site is not in an economically an impermissible attempt to legislate and is inconsistent distressed area, is not unattractive for redevelopment or with the Legislature’s intent to encourage remediation. The reuse due to the presence of contamination, and such rede- court reversed the denial of petitioners’ BCP application velopment or reuse is not complicated by the presence of and directed respondent to accept petitioners’ property contamination. into the BCP program. The court denied petitioner’s re- quest for award of cost and disbursements associated with Issues this proceeding because they were unsupported by a statu- tory basis. Whether the challenged determination was rationally based, or whether it was made in violation of lawful pro- cedure, was affected by an error of law, was arbitrary and Conclusion capricious, or an abuse of discretion. The court also addressed the unique question as to whether a property owner is entitled to reap the benefi ts Reasoning associated with BCP where a third party has already voluntarily agreed to undertake all responsibility for the The Court analyzed the legal interpretation of the investigation and removal of environmental hazards from 6 statute, focusing on the purpose, objectives, and intent of the affected site. It concluded that by statute, tax credits the legislation. Agency determinations running counter to earned as a result of the voluntary cleanup are inexplicably the clear wording of statutory provisions are afforded little linked to the amount of money spent by the parties re- 7 weight. Petitioners contended that the DEC’s decision was sponsible for the cleanup and, thus, any credits petitioners not made based on a demonstrated ineligibility under the might be awarded in the future would be based on their statute, but rather, an illegibility based on respondent’s in- share of the actual remediation of the site. terpretation of the statute. Respondent alleged that its use of agency-created guidance documents was reasonable to Nadya Kramerova, 2009 determine that petitioner was ineligible. The Court held that the legislative intent behind the Endnotes Brownfi eld Act8 was not ambiguous and was expressly 1. See §§ 27-1401 et seq. created to encourage the voluntary remediation of brown- 2. ECL §§ 27-1401–27-1431. fi eld sites for reuse and redevelopment.9 The Act defi nes 3. Id. a brownfi eld site as being “any real property, the develop- 4. See ECL § 27-1421(1). ment or reuse of which may be complicated by the pres- 5. See New York Tax Law §§ 21–23. ence or potential presence of a contaminant.”10 The Court 6. ECL §§ 27-1401–27-1431. rejected respondent’s argument that the word “any” is not all-encompassing and, thus, is not to be extended to all 7. Raritan Development Corp. v. Silva, 91 N.Y.2d 98, 103 (1997). properties and that the phrase “may be complicated by a 8. ECL §§ 27-1401–27-1431. contaminant” allows the DEC to administratively create 9. ECL § 27-1403. economic guidance factors in determining BCP eligibility. 10. ECL § 27-1405(2) New Amsterdam Casualty Co. v. Stecker The Court ruled that that the word “any” has been 11. , 3 N.Y.2d 1, 6 (1957). deemed “as inclusive as is any other word in the English 12. Patrolmen’s Benevolent Ass’n v. City of New York, 42 N.Y.2d 205, 208 11 (1976); Doctor’s Council v. New York City Employees’ Retirement System, language” and it does not create ambiguity. Statutes 71 N.Y.2d 669, 674-675 (1988); Raritan Development Corp., 91 N.Y.2d should be interpreted so as to further legislative intent 98, 106-107 (1997). through clear and unambiguous statutory language inter- 13. See In re The Medical Society of the State of New York v. Serio, 100 pretation, giving the words used their plain meaning.12 N.Y.2d 854 (2003); Boreali v. Axelrod, 71 N.Y.2d 1 (1987); Destiny USA Furthermore, an agency, by law, is not allowed to “legis- Development, LLC v. New York State Department of Conservation, 2008 late” by adding “guidance requirements” not expressly WL 2368085, 2008 Slip Op. 51161 (U) (Sup. Ct., Onondaga Co. 2008). authorized by statute.13 Thus, the DEC’s use of its own ad- 14. See Destiny USA Development, 2008 WL 2368085, 2008 Slip Op. 51161 ministratively created and much more limiting guidelines (U) at 16-17. to determine petitioners’ ineligibility is unsupported by the 15. See 6 N.Y.C.R.R. Pt. 375. express language of the statute and has been the subject of
36 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 Section Committees and Chairs The Environmental Law Section encourages members to participate in its programs and to contact the Section Offi cers or Committee Chairs for information.
Adirondacks, Catskills, Forest Peter C. Trimarchi Energy Preserve and Natural Resource Whiteman Osterman & Hanna LLP Kevin M. Bernstein Management One Commerce Plaza Bond, Schoeneck & King, PLLC Thomas A. Ulasewicz Albany, NY 12260 One Lincoln Center The Ulasewicz Law Firm [email protected] Syracuse, NY 13202-1325 112 Spring Street, Suite 307 [email protected] Coastal and Wetland Resources Saratoga Springs, NY 12866 James A. Boglioli Jennifer L. Hairie Tau@ulfl lp.com 9309 Pinyon Court New York State Department of John W. Caffry Clarence Center, NY 14032-9144 Environment Conservation Caffry & Flower [email protected] Division of Legal Affairs 100 Bay Street 625 Broadway; 14th Floor Drayton Grant Glens Falls NY 12801-3032 Albany, NY 12233-1500 Grant & Lyons, LLP jcaffry@caffrylawoffi ce.com [email protected] 149 Wurtemburg Road Amy L. Smith Rhinebeck, NY 12572-2342 William S. Helmer 188 Newman Road, PO Box 687 [email protected] Riverbank Power Corporation Lake Placid, NY 12946-0687 12 Wembly Court Continuing Legal Education [email protected] Delmar, NY 12054 James J. Periconi [email protected] Agriculture and Rural Issues Periconi, LLC David L. Cook 708 Third Avenue, 17th Floor Enforcement and Compliance Nixon Peabody LLP New York, NY 10017 Dean S. Sommer 1100 Clinton Square [email protected] Young Sommer LLC Rochester, NY 14604 Executive Woods James P. Rigano [email protected] 5 Palisades Drive Certilman Balin Adler & Hyman, LLP Albany, NY 12205 Peter G. Ruppar 1393 Veterans Memorial Highway [email protected] Duke Holzman Photiadis Suite 301S & Gresens LLP Hauppauge, NY 11788 Craig B. Kravit 1800 Main Place Tower [email protected] IVision International LLC 350 Main Street 90 John Street, Suite 311 Maureen F. Leary Buffalo, NY 14202-3718 New York, NY 10038 New York State Department of Law [email protected] [email protected] Environmental Protection Bureau Ruth A. Moore The Capitol George F. Bradlau New York State Department of Albany, NY 12224 The Bradlau Group, LLP Agriculture & Markets [email protected] PO Box 541 10B Airline Drive 18 Washington Street, 2nd Floor Corporate Counsel Albany, NY 12205 Morristown, NJ 07963-0541 George A. Rusk [email protected] [email protected] Ecology and Environment, Inc. Air Quality 368 Pleasantview Drive Environmental Business Robert R. Tyson Lancaster, NY 14086-1316 Transactions Bond, Schoeneck & King, PLLC [email protected] Robert H. Feller One Lincoln Center Bond, Schoeneck & King, PLLC Robert M. Hallman Syracuse, NY 13202-1355 111 Washington Avenue Cahill Gordon & Reindel LLP [email protected] Albany, NY 12210 80 Pine Street [email protected] Biotechnology, Nanotechnology and New York, NY 10005-1701 the Environment [email protected] Jeffrey B. Gracer David W. Quist Sive Paget & Riesel PC Edward J. Malley New York State Department of Health 460 Park Avenue TRC Companies, Inc. Division of Legal Affairs 10th Floor 1430 Broadway, 10th Floor Empire State Plaza Corning Tower, New York, NY 10022 New York, NY 10018 Room 2 [email protected] [email protected] Albany, NY 12237-0026 [email protected]
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 37 Kelly Baldwin Corso Virginia C. Robbins Internet Coordinating Committee 225 East 74th Street Bond, Schoeneck & King, PLLC Alan J. Knauf New York, NY 10021 One Lincoln Center Knauf Shaw LLP [email protected] Syracuse, NY 13202 2 State Street [email protected] 1125 Crossroad Building Environmental Impact Assessment Rochester, NY 14614-1314 Mark A. Chertok Eleanor Stein [email protected] Sive Paget & Riesel PC New York State Public Service 460 Park Avenue, 10th Floor Commission Robert S. McLaughlin New York, NY 10022 Three Empire State Plaza Bond, Schoeneck & King, PLLC [email protected] Albany, NY 12223-1000 One Lincoln Center [email protected] Syracuse, NY 13202 Kevin G. Ryan [email protected] 10 Circle Avenue Hazardous Waste/Site Remediation Larchmont, NY 10538 Lawrence P. Schnapf Journal [email protected] Schulte Roth & Zabel LLP Kevin Anthony Reilly 919 Third Avenue Appellate Division - First Department Michael P. Naughton New York, NY 10022 27 Madison Avenue Owens, McHugh, Naughton & [email protected] New York, NY 10010-2201 McQuade PLLC [email protected] 358 Broadway, Suite 206 David J. Freeman Saratoga Springs, NY 12866 Paul, Hastings, Janofsky Land Use [email protected] and Walker LLP Rosemary Nichols 75 East 55th Street Rosemary Nichols Law Firm Environmental Insurance New York, NY 10022 1241 Nineteenth Street Gerard P. Cavaluzzi [email protected] Watervliet, NY 12189-1602 Malcolm Pirnie Inc. [email protected] 104 Corporate Park Drive Historic Preservation Parks and PO Box 751 Recreation Edward F. Premo II White Plains, NY 10602-0751 Jeffrey S. Baker Harter Secrest & Emery LLP [email protected] Young Sommer LLC 1600 Bausch & Lomb Place 5 Palisades Drive Rochester, NY 14604 Daniel W. Morrison III Albany, NY 12205 [email protected] Bleakley Platt & Schmidt, LLP [email protected] One North Lexington Avenue Michael D. Zarin White Plains, NY 10601 Christopher Rizzo Zarin & Steinmetz [email protected] Carter Ledyard & Milburn LLP 81 Main Street, Suite 415 2 Wall Street White Plains, NY 10601 Environmental Justice New York, NY 10005-2001 [email protected] Jean M. McCarroll [email protected] Carter Ledyard & Milburn LLP Legislation 2 Wall Street International Environmental Law Michael J. Lesser New York, NY 10005 Constantine Sidamon-Eristoff New York State Department of [email protected] Lacher & Lovell-Taylor Environmental Conservation 460 Park Avenue, 20th Floor 625 Broadway Peter M. Casper New York, NY 10022 Albany, NY 12233 New York State Thruway Authority [email protected] [email protected] Legal Department 200 Southern Blvd; PO Box 189 John French III Jeffrey D. Brown Albany, NY 12201-0189 33 East 70th St., Suite 6 E Mackenzie Hughes LLP [email protected] New York, NY 10021 101 South Salina Street [email protected] PO Box 4967 Luis Guarionex Martinez Syracuse, NY 13221 Natural Resources Defense Council Andrew D. Otis [email protected] 40 West 20th Street, 11th Floor Curtis, Mallet-Prevost, Colt New York, NY 10011 & Mosle LLP Terresa M. Bakner [email protected] 101 Park Avenue Whiteman Osterman & Hanna LLP New York, NY 10178-0061 One Commerce Plaza Global Climate Change [email protected] Albany, NY 12260-2015 J. Kevin Healy [email protected] Bryan Cave LLP 1290 Ave of the Americas New York, NY 10104 [email protected]
38 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 Membership Megan Rose Brillault Water Quality Howard Michael Tollin Beveridge & Diamond PC George A. Rodenhausen Environmental Services Group Aon 477 Madison Ave., 15th Floor Rapport, Meyers, Whitbeck, Shaw & Risk Services, Inc. of NY New York, NY 10022-7380 Rodenhausen, LLP 300 Jericho Quadrangle, Suite 300 [email protected] 35 Main Street, Suite 541 Jericho, NY 11753 Poughkeepsie, NY 12601 Public Participation, Intervention [email protected] [email protected] and ADR Janice A. Dean Jan S. Kublick Janis E. Fallon NYS Department of Law McMahon, Kublick & Smith, P.C. Whiteman, Osterman & Hanna, LLP Environmental Protection Bureau 500 South Salina St., Suite 800 One Commerce Plaza 120 Broadway Syracuse, NY 13202-3371 Albany, NY 12260-1000 New York, NY 10271 [email protected] [email protected] [email protected] Gary A. Abraham Task Force on Legal Ethics Mining and Oil & Gas Exploration Law Offi ce of Gary A. Abraham Randall C. Young Thomas S. West 170 North 2nd Street New York State Department Of The West Firm PLLC Allegany, NY 14706 Environmental Conservation 677 Broadway, 8th Floor [email protected] Region 6 Albany, NY 12207 317 Washington Street Solid Waste twest@westfi rmlaw.com Watertown, NY 13601-3744 Marla E. Wieder [email protected] Dominic R. Cordisco Offi ce of Regional Counsel USEPA Drake Loeb Heller Kennedy Gogerty 290 Broadway, 17th Floor Yvonne E. Marciano Gaba & Rodd, PLLC New York, NY 10007-1823 The West Firm, PLLC 555 Hudson Valley Avenue, Suite 100 [email protected] 677 Broadway New Windsor, NY 12553 8th Floor John Francis Lyons [email protected] Albany, NY 12207 Grant & Lyons, LLP [email protected] Pesticides 149 Wurtemburg Rd. Telisport W. Putsavage Rhinebeck, NY 12572 Task Force on Petroleum Spills Keller and Heckman LLP [email protected] Douglas H. Zamelis 1001 G Street, NW, Suite 500 West 8363 Vassar Drive Toxic Torts Washington, DC 20001 Manlius, NY 13104 Stanley Norman Alpert [email protected] [email protected] Constantine Cannon LLP Vernon G. Rail 450 Lexington Avenue, 17th Floor Wendy A. Marsh New York State Department of New York, NY 10017 Hancock & Estabrook, LLP Environment Conservation [email protected] 1500 Mony Tower I Region 1, Bldg. 40-SUNY PO Box 4976 Cheryl P. Vollweiler Stony Brook, NY 11790 Syracuse, NY 13221-4976 Traub Lieberman Staus & [email protected] [email protected] Shrewsberry LLP Pollution Prevention Mid-Westchester Executive Park Gary S. Bowitch Jacalyn R. Fleming 7 Skyline Drive Law Offi ce of Gary Bowitch Munley Meade Nielsen & Re Hawthorne, NY 10532 119 Washington Avenue 36 North New York Ave. [email protected] Albany, NY 12210 Huntington, NY 11743 [email protected] Transportation jfl [email protected] Philip Weinberg Kristen Kelley Wilson St. John’s University School Of Law DelBello Donnellan Weingarten Wise 8000 Utopia Parkway & Wiederkehr, LLP Jamaica, NY 11439 One North Lexington Avenue, [email protected] 11th Floor William C. Fahey White Plains, NY 10601 332 South Buckhout Street [email protected] Irvington, NY 10533 [email protected]
NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 39 NEW YORK STATE BAR ASSOCIATION ENVIRONMENTAL LAW SECTION NON PROFIT ORG. U.S. POSTAGE One Elk Street, Albany, New York 12207-1002 PAID ALBANY, N.Y. ADDRESS SERVICE REQUESTED PERMIT NO. 155
Editorial Policy—Subscriptions THE NEW YORK Persons interested in writing for this Journal are wel comed and encouraged to submit their articles for con sid er ation. Your ENVIRONMENTAL LAWYER ideas and comments about the Journal are ap pre ci at ed. Editor-in-Chief Editorial Policy: The articles in this Journal rep re sent the Kevin Anthony Reilly author’s viewpoint and research and not that of the Journal Appellate Division - First Department Editorial Staff or Section Officers. The accuracy of the sources 27 Madison Avenue used and the cases cited in submissions is the re spon si bil i ty of New York, NY 10010 the author. Board of Editors Non-Mem ber Subscriptions: The New York Environmental Law- Glen T. Bruening Peter G. Ruppar yer is available by sub scrip tion to law libraries. The sub scrip- Philip H. Dixon Daniel A. Ruzow tion rate for 2009 is $140.00. For further information contact the Michael B. Gerrard Kevin G. Ryan Newsletter Dept. at the Bar Center, (518) 463-3200. Prof. William R. Ginsberg Lawrence P. Schnapf Prof. Mary L. Lyndon Prof. Philip Weinberg Gail S. Port
Section Offi cers Student Editorial Assistance Chair St. John’s University, School of Law Joan Leary Matthews Editor NYS Dept. of Environmental Conservation Nadya Kramerova Offi ce of Hearings & Mediation Services 625 Broadway, 14th Floor Contributors Albany, NY 12233 Christopher J. Palmese [email protected] Scott Ross First Vice-Chair Alan J. Knauf Knauf Shaw LLP 2 State Street, 1125 Crossroad Building This publication is published for members of the En vi ron men- Rochester, NY 14614 tal Law Section of the New York State Bar As so ci a tion. Mem- [email protected] bers of the Section receive a sub scrip tion to the publication without charge. The views expressed in articles in this publica- Second Vice-Chair tion rep re sent only the authors’ view points and not nec es sar i ly Barry R. Kogut the views of the Editor or the Environmental Law Section. Bond, Schoeneck & King, PLLC Copyright 2009 by the New York State Bar As so ci a tion One Lincoln Center ISSN 1088-9752 (print) ISSN 1933-8538 (online) Syracuse, NY 13202 [email protected] Treasurer Philip H. Dixon Whiteman Osterman & Hanna LLP One Commerce Plaza Albany, NY 12260 [email protected] Secretary Carl R. Howard U.S. Environmental Protection Agency Offi ce of Regional Counsel 290 Broadway New York, NY 10007-1866 Printed on Recycled Paper [email protected]