Matter of 29 Flatbush Assoc. LLC v New York State Dept. of Envtl. Conservation

[*1] Matter of 29 Flatbush Assoc. LLC v New York State Dept. of Envtl. Conservation 2011 NY Slip Op 50407(U) Decided on March 22, 2011 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 22, 2011
Supreme Court, Kings County

In the Matter of 29 Flatbush Associates, LLC, Petitioner,

against

New York State Department of Environmental Conservation, Alexander B. Grannis, as Commissioner of the New York State Department of Environmental Conservation, and Dale A. Desnoyers, as Director of the Division of Environmental Remediation, Respondents.



21827/09

 

Petitioner

Linda R Shaw

Knopf & Shaw, PC

NY NY

Respondent Norman Spiegel, Esq.

Isaac Cheng, Esq.

ANDREW M. CUOMO

Attorney General of the State of New York

NY NY

Arthur M. Schack, J.

The following papers numbered 1 to 3 read on this motion:Papers Numbered:

Notice of Motion and Affidavits (Affirmations)____________1

Supporting Memorandum of Law_______________________2

Opposing Memorandum of Law________________________3

________________________________________________________________________

Petitioner, 29 FLATBUSH AVENUE ASSOCIATES, LLC (FLATBUSH), moves to reargue, pursuant to CPLR Rule 2221 (d), my May 3, 2010 decision and order in this Article 78 proceeding. This decision was published by the New York State Official Reporter at 27 Misc 3d 1217 (A). The May 3, 2010 decision and order vacated the April 28, 2009 determination by respondent NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC), which denied petitioner FLATBUSH'S application for the inclusion of the "Site" at 29 Flatbush Avenue, Brooklyn, New York (Block 2105, Lot 19, County of Kings) in the New York State Brownfield Cleanup Program (BCP), pursuant to Environmental Conservation Law (ECL) § 27-1401 et seq.

I held that DEC's April 28, 2009 determination was arbitrary and capricious or an abuse of discretion and remanded the matter to DEC for further consideration in light of my May 3, 2010 decision and order. I ordered FLATBUSH to perform further investigations at the Site, specifically: a groundwater investigation, a soil vapor investigation, the completion of a soil characterization analysis and a magnetometer survey; and, to submit the investigation results to DEC with documented results of petitioner FLATBUSH's efforts to obtain financing for the subject project and documentation demonstrating petitioner FLATBUSH's alleged inability to proceed with the project unless the Site is accepted into the BCP. Further, I ordered DEC, pursuant to ECL § 27-1407 (6), to use all best efforts to notify petitioner FLATBUSH within forty-five days after receiving the above information that its BCP application is either accepted or rejected.

Petitioner FLATBUSH does not reargue those portions of my May 3, 2010 decision and order holding that DEC's denial of the Site's admission into the BCP was arbitrary and capricious or an abuse of discretion, but seeks to reargue those limited portions of my May 3, 2010 decision and order that petitioner FLATBUSH submit to DEC: the results of my ordered further investigations at the Site; and, the results of petitioner FLATBUSH's efforts to obtain financing and petitioner FLATBUSH's alleged inability to proceed with the project unless it is accepted into the BCP. Petitioner FLATBUSH alleges that the following, at *11 of my May 3, 2010 decision and order, is a matter of law misapprehended by the Court - "[a]lthough DEC's denial of petitioner's application is improper, it does not automatically follow that the petitioner's BCP application should be granted. The record is incomplete." Petitioner FLATBUSH claims that there is sufficient information in DEC's Administrative Record (AR) for the Court to have directed DEC to include the Site into the BCP. Respondents argue that my May 3, 2010 decision and order did not overlook or misapprehend any material facts or controlling principles of law.

Moreover, petitioner FLATBUSH seeks an award of its costs, disbursements, legal and [*2]other fees, which resulted in my May 3, 2010 decision and order and this motion to reargue, pursuant to CPLR Article 86, the "New York State Equal Access to Justice Act."

After hearing oral arguments by counsel for petitioner FLATBUSH and respondents, and after reviewing all papers, the Court grants petitioner FLATBUSH leave to reargue those portions of my May 3, 2010 decision and order that it alleges that the Court misapprehended. Upon reargument, I continue to hold that DEC's April 28, 2009 determination, denying petitioner FLATBUSH's application for the Site's inclusion in the BCP, pursuant to Environmental Conservation Law § 27-1401 et seq., is arbitrary and capricious or an abuse of discretion and uphold vacating DEC's April 28, 2009 determination. Further, I now hold that: the AR is complete; the Site at 29 Flatbush Avenue is admitted forthwith into the BCP; and petitioner FLATBUSH is granted an award of its costs, disbursements, legal and other fees, which resulted in my May 3, 2010 decision and order and this motion to reargue, pursuant to CPLR Article 86.

Background

Petitioner FLATBUSH is the owner of the Site, near the intersection of Fulton Street and Flatbush Avenue, which petitioner purchased for $28,000,000 in November 2007. Petitioner applied to respondent DEC to participate in the BCP, pursuant to ECL, Article 27, Title 14, because contaminants present at the site were sufficient to allow its participation and inclusion. Respondent DEC denied petitioner's application for the Site to be included in the BCP, in a letter, dated April 28, 2009, from respondent DALE A. DESNOYERS (DESNOYERS), Director of DEC's Division of Environmental Remediation, to petitioner and petitioner's counsel.

Subsequently, petitioner FLATBUSH commenced the instant Article 78

proceeding to: annul and reverse DEC's denial of its BCP application; declare the Site eligible for the BCP; declare that DEC's March 2005 Eligibility Guidance Manual or any other informal guidance or policy excluding consideration of the Site from eligibility for the BCP fatally inconsistent with statutory law, illegal and void; declare that petitioner should be treated equally with all other parties in the BCP; and, direct respondents to grant petitioner's application to participate in the BCP for remediation and redevelopment of the Site. Respondent DEC opposed the petition and included, as part of its opposition, affidavits from DESNOYERS and Robert J. Cozzy, DEC Environmental Engineer and Acting Bureau Director for a Remedial Bureau in the Division of Environmental Remediation. Petitioner replied with affidavits from John M. Gavras, a certified professional geologist, and Drew Spitler, Vice President of Development for The Dermot Company, Inc., who manages the Site for petitioner.

The New York State Legislature enacted the Brownfield Cleanup Program Act

(BCPA), effective October 7, 2003, codified in ECL § 27-1401 et seq. ECL § 27-1405 (2) defines a "Brownfield site," with certain exceptions not relevant in this proceeding, as "any real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of a contaminant." Further, ECL § 25-1405 (7-a) defines "contaminant" as "hazardous waste and/or petroleum as such terms are defined in this section." Brownfield sites often present, in addition to environmental and blight concerns, legal and financial burdens. Contaminated sites, particularly when left vacant, diminish property values of the surrounding area and threaten the economic viability of adjoining properties. The BCPA is to encourage voluntary cleanup of hazardous waste sites and the ultimate restoration of such sites to productive use, including restoration to the tax rolls. (Weinberg, Practice Commentaries, [*3]McKinney's Cons Laws of NY, Book 17½, ECL § 27-1401 [2007]).If a BCP applicant satisfactorily cleans a contaminated Brownfield site and

receives DEC's certificate of completion, the applicant can receive tax credits, pursuant to Tax Law §§ 21-23 and a release from future liability to New York State for contamination, pursuant to ECL § 27-1421 (1), which "shall run with the land," pursuant to ECL § 27-1421 (3).

BCP participation is subject to DEC approval. (ECL § 27-1407 [1]). The BCPA requires, among other things, that an application be made to DEC, commencing a DEC investigation and a public notification process. (ECL § 27-1407 [5]). Then, DEC decides whether to accept or reject the BCP application. DEC, in determining BCP eligibility, considers only "contamination" from on site sources. (6 NYCRR § 375-3.3 [2]). DEC does not consider "historic fill material" as a contaminant.DEC is authorized to "[i]ssue and amend guidance memoranda and similar

documents of general applicability which are to be relied upon by department personnel for implementation of this chapter, and rules and regulations promulgated pursuant thereto, and for guidance to the general public in complying with the requirements of this chapter." (ECL § 3-0301 [2] [z]). DEC issued: in May 2004, a "Draft Brownfield Cleanup Program Guide," which has not been finalized to date [the Draft BCP Guide]; and in March 2005, its final Eligibility Determination Guidance [the Eligibility Guidance Manual], which it incorporated into the Draft BCP Guide. The Eligibility Guidance Manual lists: five factors, in § 2.2.2, relating to the "contamination test" that DEC will consider in "determining whether there is confirmed contamination or a reasonable basis to believe that contamination is likely to be present on the property"; and, four factors, in § 2.2.3, relating to the "complication of development test" that DEC will consider in "determining whether there is a reasonable basis to believe that the contamination or potential contamination may be complicating the development, use or re-use of the property."

Further, DEC has the general power to "[a]dopt such rules, regulations and

procedures as may be necessary, convenient or desirable to effectuate the purposes of this chapter." (ECL § 3-0301 [2] [m]). Thus, DEC adopted regulations relating to and implementing the BCPA. (6 NYCRR § 375-3.1 et seq.). However, DEC's guidance factors are "conspicuously missing from the DEC's own regulations with regard to the BCP (see 6 NYCRR Part 375)." (HLP Props., LLC v New York State Dept. of Envtl. Conservation, 21 Misc 3d 658, 670 [Sup Ct, New York County 2008], affd 70 AD3d 469 [1d Dept 2010]. DEC's use of its far more limiting BCP eligibility guidelines for BCP applicants have been rejected by Courts. " [A]n agency, by law, is not allowed to legislate' by adding guidance requirements' not expressly authorized by statute.' (Matter of HLP Props., LLC v New York State Dept of Envtl. Cons., 21 Misc 3d 658, 669; see Matter of Medical Society of State of New York v Serio, 100 NY2d 854, 866 [2003])." (Destiny USA Development, LLC v New York State Dept. of Environmental Conservation, 63 AD3d 1568, 1570 [4d Dept 2009], lv denied 66 AD3d 1502 [4d Dept 2009], lv denied 14 NY3d 703 [2010]).

DEC developed specific risk levels, with tables of numeric and contaminant specific "soil cleanup objectives" (SCOs), to protect public health and the environment for three types of land use - unrestricted (residential use), commercial, and industrial. (ECL § 27-1415 [6]). "[T]he BCP affords applicants the flexibility to employ the tables or site-specific criteria to determine acceptable levels of residual contamination, based on four different cleanup tracks.'" [*4](Lighthouse Pointe Prop. Assocs. LLC v New York State Dept. of Environmental Conservation, 14 NY3d 161, 166 [2010]). In the instant proceeding, petitioner FLATBUSH elected a track 1 remedial program, which "generally achieves a cleanup level and the SCOs appropriate for unrestricted residential use (as published in the relevant generic table) without reliance on any institutional . . . or engineering controls." (Lighthouse Point at footnote 2, citing ECL § 27-1415 [4]).

Flatbush's Site is approximately 0.38 acres or 17,700 square feet and was used as a

parking lot since the 1960s [AR at 8, 849]. When the Site was a parking lot, automotive lifts with hydraulic lift systems were utilized for parking [AR at 8, 849]. Prior to the 1960s, the Site had been the location of a theater [AR at 8] and earlier, prior to the 1900s, the Site had been improved with numerous multistory residential buildings [AR at 38]. The Site is located in Kings County Census Tract 33, which, according to the 2000 US government census, had a poverty rate of 19.88%.

Petitioner plans to build a 342-unit high-rise residential structure at the Site, with

80% market-rate housing, 20% low-income housing, some retail units on the ground floor

and underground parking [AR at 11]. To participate in the BCP, petitioner filed, on April 4, 2008, an application with DEC [AR at 2], initially supported by two reports from petitioner's environmental consultants [AR at 12]: a Phase I Environmental Site Assessment by IVI Due Diligence Services, Inc. [AR at 35-102]; and, a Limited Subsurface Investigation Report prepared by Hydro Tech Environmental Corp. [AR at 844-906].

The Phase I Environmental Site Assessment revealed no evidence of "recognized environmental conditions," except for: surface-level spills of hydraulic fluid which may contain PCBs [AR at 38]; and, the possibility that demolition debris or subsurface improvements remained at the site from former improvements [AR at 39]. The Phase I consultant recommended that "during site redevelopment activities the soils at the [property] are handled and disposed of in accordance with all applicable governmental regulations [AR at 38]" and that "[i]n the event that building debris, tanks, etc. are encountered during the excavation activities, . . . that they are closed or disposed of in accordance with applicable local regulations [AR at 39]."

The Limited Subsurface Investigation Report found "the presence of semi-volatile organic compounds [SVOCs] in the north and southwest portions of the Site at concentrations 2 orders of magnitude greater than their respective regulatory standard [AR at 848]." The Report recommended that DEC's Spill Hotline be contacted and informed about the elevated levels of SVOCs and the soil in the northern and southeast portions of the site should be excavated and removed [AR at 864].

Subsequently, petitioner sent an additional investigation report to DEC, for review in conjunction with its BCP application [AR at 917-1603], containing a supplemental soil sampling collected by or for petitioner's consultant, Langan Engineering & Environmental Services, from non-native fill material and native soil at the site [AR at 920-921]. The supplemental soil testing report found contamination in non-native fill material, but none in native soil [AR at 922].Respondent DEC denied petitioner's BCP application on April 28, 2009, claiming that the Site did not meet the statutory definition of a "Brownfield," stating, in relevant part:

Contamination consisting of lead and semi-volatile organic

compounds ("SVOC") is present on the Site. The Application,

the supplemental soil sampling results and other underlying data [*5]

submitted to the Department indicated that there are concentrations

on the Site of seven (7) SVOC compounds that exceed the Department's

regulatory remediation objectives as stated in 6 NYCRR Part 375.

However, these soil sampling results do not indicate that there will

be any complications of the Site's future development as contamination

[sic]. Further, they appear to be the result of historic fill materials

only.

In addition, the contamination discovered by this data appears

to be minimal when compared to the vast majority of the sampling

(approximately 39 total samples) and the total number of SVOC

contaminants detected (19 in total). Finally, the random locations

and concentrations of the SVOC discovered in Site soils indicates a low potential for the excavation and off-site disposal of Site soils ashazardous wastes. Therefore, it is highly unlikely that the redevelopment

of the Site would generate additional costs or complications due to

that issue.A review of the BCP application sampling data also indicates

the presence of one sample with an extremely high lead concentration.

However, this lead sample appears to be isolated due to the lack of

similar sampling results both in proximity of the sample in question

or elsewhere on the Site. In addition, TCLP [Toxicity Characteristic

Leaching Procedure] analysis was done on the lead samples, including

the sample with the highest concentration (11,400 mg/kg). The results

of that sampling indicated that none of the samples exceeded the

hazardous waste threshold (i.e., 5 mg/l) for lead as set forth in

Title 6 of NYCRR Part 371. Also, the supplemental soil sampling

results submitted in July 2008, demonstrated that the identified lead

contamination in soil is isolated both vertically and horizontally.

This makes it unlikely that there is lead contamination on the Site

which would require remediation. Therefore, it is highly unlikely

that there is sufficient lead contamination present to complicate

the redevelopment of the Site.

Additional factors used to make this determination include:

1.The historical uses of the Site since 1900 (theater and parking lot)

make it highly unlikely that sufficient contamination or potential contamination was generated via these uses and then released to

the Site in concentrations that would complicate the redevelopment

of the Site;

2.The Department finds no conclusive data to indicate that there

still may be unclosed or leaking underground storage tanks on

the Site which could complicate redevelopment;

3.The applicant did not undertake (or provide) groundwater

sampling for the Site which may have revealed additional [*6]

types and sources of contamination that could complicate

redevelopment [; and]4.The Department also notes that the area was recently rezoned

and during the rezoning process the City did not identify any

environmental factors that would qualify the Site for New

York City's E-Designation Environmental Review Program

for Hazardous Materials, Air Quality and Window/Wall

Noise Attenuation (AR at 1615-1616).

Petitioner commenced the instant CPLR Article 78 proceeding to challenge the validity of DEC's April 28, 2009 determination with respect to the Site and the BCP.

The standard for judicial review of DEC's administrative decision is whether it

"was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion." (CPLR § 7803 [3]). For a reviewing court to find that an agency determination was arbitrary and capricious or an abuse of discretion it would have to find that the action taken was without sound basis in reason and without regard to the facts (Matter of Pell v Board of Educ. of Union School District No.1, 34 NY2d 222, 230-231 [1974]). A rational basis exists where the determination was " [supported] by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination' (Matter of Pell v Board of Educ. at 231; see Matter of Weber v Town of Cheekatowaga, 284 NY [377] at 380 [1940])." (Matter of Ador Realty, LLC v Division of Housing & Community Renewal, 25 AD3d 128, 139-140 [2d Dept 2005]).

A reviewing court will not substitute its judgment for that of the agency unless the agency's determination was arbitrary, capricious, or contrary to law (see Pell at 231), and "where . . . the judgment of the agency involves factual evaluations in the area of the agency's expertise and is supported by the record, such judgment must be accorded great weight and judicial deference." (Flacke v Onondaga Landfill Sys., Inc., 69 NY2d 355, 363 [1987]). On the other hand, "[w]here, however, the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretive regulations are therefore accorded much less weight [Emphasis added]." (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]). Further, "if the regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight." (Kurcsics at 459). The Court of Appeals, in Lighthouse Pointe at 176, held that "[t]he meaning of the term brownfield site' presents such a question . . .

of pure statutory analysis [Emphasis added]."

Moreover, in Lighthouse Pointe at 176, the Court of Appeals instructed that "t]here are two constituents to the definition [of a Brownfield site]: the presence or potential presence of a contaminant on the real property; and this presence or potential presence must complicate the property's redevelopment or reuse. The term contaminant' is defined in the statute (see ECL 27-1405 [7-a])." (Lighthouse Pointe at 176). DEC, in the instant matter, acknowledged that the Site is contaminated by at least seven separate SVOC compounds, as well as by lead, in amounts exceeding DEC's regulatory remediation objectives. At issue, in the instant proceeding, was the [*7]propriety of DEC's application of the "complication of development" test, pursuant to the definition of a "Brownfield site" in ECL § 27-1405 (2).

The Court of Appeals, in Lighthouse Pointe at 177, held that the "statutory definition does not, on its face, mandate the presence of any particular level or degree of contamination" and "the word complicate' also undefined in the statute, in common English usage means to make complex, involved, or difficult' [citation to a dictionary]." "Accordingly, any real property qualifies as a brownfield site' for purposes of acceptance into the BCP so long as the presence or potential presence of a contaminant within its boundaries makes redevelopment or reuse more complex, involved, or difficult in some way." (Lighthouse Pointe at 177). The Appellate Division, Fourth Department, in Destiny USA Dev., LLC at 1570, instructed that "ECL 27-1405 (2) . . . requires that redevelopment only potentially be complicated' by the presence of contamination (see HLP Props., LLC at 668-670)." "Accordingly, complicated' must be construed as having the same meaning it has under CERCLA [Federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC § 9601 et seq.] and thus under the Federal EPA working definition of a brownfield, where complicated' means where contamination can add cost, time or uncertainty to a redevelopment project.'" (East River Realty Co., LLC v New York State Dept. of Environmental Conservation, 22 Misc 3d 404, 411 [Sup Ct, New York County 2008], affd 68 AD3d 564 [1d Dept 2009]). (See Buffalo Development Corp. v New York State Dept. of Environmental Conservation, 23 Misc 3d 1129 [A] [Sup Ct, Erie County 2009]).

In Lighthouse Pointe, at 176, the Court of Appeals rejected DEC's contention that "once it determined that no cleanup was warranted, redevelopment or reuse of the properties was, by force of this circumstance alone, not complicated' within the meaning of the statutory definition." The Lighthouse Pointe Court held, at 177, that there is a low threshold of eligibility for an applicant to enter the BCP program and "the Legislature intended the definition of the term brownfield site' to be interpreted as broadly as its words suggest [emphasis added]." Professor David Siegel described the Lighthouse Pointe decision as petitioner "is sustained and the DEC's position dismissed as so much solid waste." (Brownfield Cleanup Program, Finding Arbitrary the DEC's Rejection of Owner's Request to Admit Its Land into Cleanup Program, Court Mandates Acceptance, Siegel, NY St L Dig No. 604, at 3 [April 2010]). The Appellate Division, First Department in East River Realty Co., LLC, at 564, held, "[w]e reject respondent's [DEC's] argument that a property may be deemed ineligible for the program on the ground that it would have been remediated in any event." In Destiny USA Dev., LLC, at 1570, the Appellate Division, Fourth Department, refused to accept DEC's position because:

The DEC did not address in its determination any of the specified

complications to redevelopment that Destiny asserted would result

from contaminants in the subject parcels. Instead, the DEC relied

upon its self-promulgated "guidance" and "guide factors" that require,

inter alia, consideration of whether a parcel is "idled, abandoned or

underutilized" and a comparison of the estimated remediation cost "to

the anticipated value of the proposed site as redeveloped or reused."

Those factors effectively limit inclusion in the BCP to parcels of real

property that, but for BCP participation, would remain undeveloped. [*8]

We conclude that the application of such a categorical limitation without

a fact-specific analysis contravenes the broadly worded definition of

brownfield site set forth in ECL 27-1402 (2) . . . Thus, the categorical

application by the DEC of its "guidance" and "guide factors" as a

precondition to admission into the BCP both conflicts with the intent

of the Legislature and constitutes an impermissible attempt to legislate.

In the instant proceeding, similar to Lighthouse Pointe, DEC's interpretation of the "complication of development" tests goes against the statutory requirement that the definition of a "Brownfield site" be construed as broadly as the language in ECL § 27-1405 (2) suggests. Thus, DEC's internal determination and formal denial of petitioner

FLATBUSH's participation in the BCP is not entitled to any special deference, and is arbitrary and capricious and an abuse of discretion.

DEC found, in its internal memorandum, dated July 29, 2008, when applying its own "complication of development" test factors, based upon its Eligibility Guidance Manual § 2.2.3, that two of the four "complication of development" test factors: whether the proposed site is unattractive for redevelopment or reuse due to the presence or reasonable perception of contamination; and whether the estimated cost of any necessary remedial program is likely to be significant in comparison to the anticipated value of the

proposed site as redeveloped or reused; weighed against petitioner [AR at 1610-1611].

Next, DEC found that estimated cost of any necessary remedial program was likely to be insignificant in comparison to the anticipated value of the proposed site as redeveloped or reused [AR at 1611]. DEC's analysis was flawed. It failed to account for petitioner's alleged inability to obtain financing absent its participation in the BCP [Spitler Affidavit, ¶ 9 and ¶ 11].

DEC accorded no weight to the two remaining DEC "complication of development" test factors which were satisfied, underutilization of the Site and the Site's location in a blighted area. Also, DEC did not consider other socio-economic factors such as the number of new construction jobs that would be created for the duration of the project and future additional property taxes collected as a result of the project. DEC in its formal denial, eschewed applying its own Eligibility Guidance Manual § 2.2.3 "complication of development" factors.

DEC considered, in its formal April 28, 2009 denial of petitioner's BCP

application, "whether there is a reasonable basis to believe that such contamination or potential contamination may complicate the redevelopment or reuse of the property" [AR at 1615]. While taking it as a given that the Site was contaminated with seven separate types of toxins, as well as lead, all in excess of DEC's regulatory remediation objectives, DEC nevertheless concluded that petitioner's multiple soil "sampling results do not indicate that there will be anycomplications of the Site's future development as the contamination [sic]"[AR at 1616]. DEC claimed that contamination samples were few in number, widely separated, and not of enough magnitude, even though the readings at the site exceeded its own published contamination levels [AR at 1616]. To discount these contamination readings, DEC asserted that only seven out of the total of nineteen toxins [*9]found exceeded the contamination levels [AR at 1616]. Therefore, according to DEC, the Site having an excessive amount of seven separate toxins is insufficient to complicate the Site's development, even though ECL § 27-1405 (2) only requires the "presence or potential presence of a contaminant [emphasis added]." Also, DEC brushed aside the presence of a sample with an extremely high lead concentration as a fluke, claiming that "the lead sample appears to be isolated due to the lack of similar sampling results both in proximity of the sample in question or elsewhere on the Site" [AR at 1616].

The Court of Appeals, as noted above, held in Lighthouse Pointe, that DEC's narrow interpretation of the "complication of development" test for a subject property to be eligible for the inclusion in the BCP was overly restrictive and not supported by the language of the statute or the legislative intent. The Lighthouse Pointe Court rejected DEC's argument that it was the sole arbiter to determine whether or not a site should be included in the BCP, instructing in Lighthouse Pointe at 177, "that the Legislature intended the definition of the term brownfield site' to be interpreted as broadly as its words suggest." The Lighthouse Pointe holding, reversed the Appellate Division's decision to the contrary (61 AD3d 88 [4d Dept 2009]), which accorded deference to DEC, and reinstated the order of the Supreme Court, Monroe County (2007 WL 5540594), which granted petitioner Lighthouse Pointe Property Associates, LLC's Article 78 petition for admission to the BCP. Lighthouse Pointe sends a clear message to DEC. There must be transparent administration of the BCP, using quantitative parameters (i.e., the SCOs) to guide decision-making related to the "complication of development" test, rather than relying exclusively on qualitative, site-by-site determinations.

Thus, DEC, in the instant proceeding, engaged in the same type of sui generis inquiry rejected by the Court of Appeals in Lighthouse Pointe. DEC used a combination of four arguments to deny the instant application: (1) the quantitative criteria of the generally accepted cleanliness levels (the SCOs) were not relevant at the application stage; (2) even if such quantitative criteria were relevant, they were not meaningful because the site samples did not significantly exceed them; (3) even if such quantitative criteria were relevant and meaningful, they could still be disregarded because contamination was located in historic fill material; and (4), some vague qualitative factors such as "specific site conditions," "the project's design specifications," and "other methods for eliminating the threats, if any, posed by the presence of contamination"

[Cozzy Affidavit, ¶ 15] weighed in favor of denying the application.

DEC's determination in the instant matter, similar to DEC's determination in Lighthouse Pointe was arbitrary and capricious or an abuse of discretion, for the following reasons:

(1)The generally accepted cleanliness levels, or the SCOs,

represent the only objective, "hard" data indicating whether

a site is contaminated. The SCOs must be used at the

application stage in order for the DEC's decision-making to [*10]

be rational and transparent;

(2)The contamination of the Site is meaningful because, based

upon lead data samples alone of the thirteen initial borings in

the fill, the composite samples in three, or 23%, of the borings

exceeded the restricted residential SCO level of 400 ppm

for lead [Gavras Affidavit, ¶ 35]. Sixteen of the twenty-seven

supplemental soil samples that were collected for total lead

analyses, or 59%, exceeded the SCO level for lead [Gavras

Affidavit, ¶ 32]. DEC admitted, in its formal denial, that there

were seven separate toxins present at the site in concentrations

that exceeded the maximum allowable levels of various

contaminants that can be present at a BCP site after a cleanup

is completed [AR at 1616];

(3)The alleged location of the contamination in the historic fill

material at the site did not negate the fact that the site is

contaminated; and

(4)DEC ignored petitioner's alleged inability to obtain financing

absent its participation in the BCP [Spitler Affidavit, ¶ 9 and

¶ 11].

In my May 3, 2010 decision and order, I held that the record was incomplete and ordered: (1) further groundwater and soil vapor investigation; (2) a magnetometer survey of the site; (3) documentation of petitioner's efforts to obtain financing beyond the allegations in the Spitler affidavit; and, (4) petitioner FLATBUSH to provide DEC for its consideration with information whether or not petitioner FLATBUSH would be able to proceed with the project unless the Site is accepted into the BCP.

Grant of leave to reargue

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." (CPLR Rule 2221 [d] [2]).

"A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided." (Foley v Roche, 68 AD2d 558, 567 [1d Dept 1979]). "[T]he determination to grant leave to reargue a motion lies with the sound discretion of the court." (Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819 [2d Dept 2011]). (See Spectrum Painting Contractors, Inc. v Kreisler Borg Florman General Const. Co., Inc., 54 AD3d 748, 749 [2d Dept 2008]; Vishnevsky v Glassberg, 29 AD3d 680, 681 [2d Dept 2006]; McGill v Goldman, 261 AD2d 593, 594 [2d Dept 1999]). The Court now finds that it misconstrued certain limited issues in its May 3, 2010 decision and order, and in its discretion, pursuant [*11]to CPLR Rule 2221 (d) (2), grants leave to petitioner FLATBUSH to reargue those portions of my May 3, 2010 decision and order that it alleges the Court misapprehended.

The Court, upon reargument, now finds that: the information submitted by petitioner FLATBUSH in the Gavras affidavit to respondent DEC was substantially similar to that submitted by the petitioner in Lighthouse Pointe; and, the AR was sufficiently developed to have determined that the Site was eligible for immediate admission into the BCP without the need for supplemental information. Petitioner's original application, containing information related to multiple contaminants in the soil, was sufficient evidence that the Site met the brownfield site statutory definition. "Real property qualifies as a brownfield site" for purposes of acceptance into the BCP as long as the presence or potential presence of a contaminant within its boundaries makes redevelopment or reuse more complex, involved, or difficult in some way." (Lighthouse Pointe at 177).

Moreover, my May 3, 2010 condition requiring petitioner FLATBUSH to provide DEC with evidence of financing complications was unnecessary. Contaminant levels exceeding regulatory standards inherently create complications related to soil disposal which is sufficient for the Site to be admitted into the BCP. The Court of Appeals, in Lighthouse Pointe, at 177, held that "complicate," which is undefined in the statute, "in common English usage means to make complex, involved or difficult' . . . Accordingly, real property qualifies as a brownfield site' for purposes of acceptance into the BCP so long as the presence or potential presence of a contaminant within its boundaries makes redevelopment or reuse more complex, involved or difficult in some way [emphasis added]." As such, the Court of Appeals did not limit the term "complicate" to simply being unable to obtain financing. Petitioner FLATBUSH submitted sufficient information to the Court to determine that redevelopment of the Site was complicated by contamination based upon the AR and the Spitler affidavit.

Further, my last condition that petitioner FLATBUSH provide DEC with information whether or not petitioner FLATBUSH would be able to proceed with the project unless it was accepted into the BCP is a "but for" test, which should not have been required. In East River Realty Co., LLC v New York State Dept. of Environmental Conservation (68 AD3d 564 [1d Dept 2009]), the Court held that "[w]e reject respondent's argument that a property may be deemed ineligible for the program on the ground that it would have been remediated in any event," and cited Destiny USA Development, LLC v New York State Dept. of Environmental Conservation, 63 AD3d 1568, 1570 [4d Dept 2009] and HLP Props., LLC v New York State Dept. of Envtl. Conservation, 21 Misc 3d 658, 669 [Sup Ct, New York County 2008]. Subsequently, the First Department affirmed HLP Props., LLC v New York State Dept. of Envtl. Conservation (70 AD3d 469 [1d Dept 2010]).

Therefore, with the grant of reargument to petitioner FLATBUSH, the Site is admitted forthwith into the BCP.

Article 86 of the CPLR, the "New York State Equal Access to Justice Act," provides, [*12]according to CPLR § 8600 "a mechanism authorizing the recovery of counsel fees and other reasonable expenses in certain actions against the state of New York, similar to the provisions of federal law contained in 28 U.S.C. § 2412 (d) and the significant body of case law that has evolved thereunder." Petitioner FLATBUSH is granted an award of its costs, disbursements, legal and other fees, which resulted in my May 3, 2010 decision and order and this motion to reargue, provided it files an application with this Court complying with the requirements of CPLR § 8601.

Conclusion

Accordingly, it is

ORDERED, that the motion of petitioner 29 FLATBUSH AVENUE

ASSOCIATES, LLC to reargue, pursuant to CPLR Rule 2221 (d), certain limited issues in my May 3, 2010 decision and order in this Article 78 proceeding, published at 27 Misc 3d 1217 (A), is granted; and it is further

ORDERED, this Court continues to hold that respondent NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION's April 28, 2009 determination, which denied petitioner 29 FLATBUSH AVENUE ASSOCIATES, LLC's application for inclusion in the New York State Brownfield Cleanup Program, pursuant to Environmental Conservation Law § 27-1401 et seq., is arbitrary and capricious or an abuse of discretion; and it is further

ORDERED, that this Court continues to hold that the aforementioned April 28, 2009 determination of respondent NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION is vacated; and it is further

ORDERED, that petitioner 29 FLATBUSH AVENUE ASSOCIATES, LLC's Site, located at 29 Flatbush Avenue, Brooklyn, New York (Block 2105, Lot 19, County of Kings) is admitted forthwith into the New York State Brownfield Cleanup Program, pursuant to Environmental Conservation Law § 27-1401 et seq.; and it is further

ORDERED, that petitioner 29 FLATBUSH AVENUE ASSOCIATES, LLC is granted an award of its costs, disbursements, legal and other fees, which resulted in my May 3, 2010 decision and order and this motion to reargue, pursuant to CPLR Article 86, provided that petitioner 29 FLATBUSH AVENUE ASSOCIATES, LLC shall comply with the requirements of CPLR § 8601 by submitting an application to this Court.

This constitutes the Decision and Order of the Court.

ENTER

________________________________

HON. ARTHUR M. SCHACK

J. S.C.

[*13]