Consultants working with Mayor Byron W. Brown’s Office of Strategic Planning will present three different development scenarios for each Brownfield Opportunity Area (BOA) in Buffalo June 26, 27 and 28. Residents will have an opportunity to hear about the three scenarios and offer input. Robert E. Knoer, who practices environmental law and land use planning with The Knoer Group, PLLC provides some background on BOA's.
The term “brownfield” generally describes property which is under-utilized due to environmental contamination or perceived contamination. The wide liability net cast by the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) of 1979, often referred to as the “Super Fund Law”, caused many businesses, lenders, developers and others to shy away from investing in sites that potentially had environmental contamination. It wasn’t just the contamination issue that drove investment dollars away from these sites. It was also a change in demographics; a change in how people worked and where people lived that pushed people and investments into “greenfields” in the outer rings of cities - and to even more rural areas. However, to a great extent the inability to re-develop these underutilized and abandoned properties was driven by fear of liability for the cost of remediating contamination; a cost that could far exceed even the cost of purchase.
It is important to use terms carefully when referring to “brownfields.” The generic description above can be used in general discussions. However, when talk turns to state or federalprograms which are providing for benefits and/or liability limitations with regard to these properties, you must look to the definition imbedded within those statutory and policy programs to determine what is, and what is not, a “brownfield” for that specific purpose.
Brownfield Cleanup Program (BCP)
The Brownfield Cleanup Program run by the State of New York Department of Environmental Conservation creates incentives for developers to reinvest their capital in these long abandoned properties at limited risk of liability. The Department of Environmental Conservation instituted a Voluntary Cleanup Policy (VCP) that began to drive capital investment to these sites as a matter of policy through Voluntary Cleanup Agreements. The State legislature created the Brownfield Cleanup Program to advance the VCP policy even further. Brownfield cleanup efforts, both in the Voluntary Cleanup Agreement policy and the Brownfield Cleanup Program, are true Public Private Partnerships (PPP). Through these programs the government uses the tools at its disposal (liability limitation and tax relief) to attract private investment dollars that will create jobs and increase assessed value in municipalities.
Brownfield Opportunity Area Program (BOA)
New York State also instituted a Brownfield Opportunity Area or BOA Program in 2003. The Department of State assists municipalities in the redevelop of whole areas that have been impacted by the brownfield phenomenon through the BOA Program. Although connected by policy to the Brownfield Cleanup Program, the BOA Program is statutorily distinct. The Brownfield Opportunity Area is defined by statute and refers to an area designated through the BOA process to be eligible for certain benefits extending to developers who utilize those areas in compliance with the BOA approved application guidelines.
Although there have been no BOA’s awarded final designation to date there are a number of municipalities that are in the midst of this vigorous application process. Buffalo has several areas applying for BOA designation alone. Municipalities are eligible for funding assistance with this application process. Buffalo has been fortunate to have received significant assistance in its efforts due to the efforts of City planners and others. There are many steps required to achieve a BOA designation. That approval however opens the door to a variety of enhanced credits and benefits.
The BOA process is at its essence an economic development process. However larger area-wide considerations of non-economic, quality of life “neighborhood amenities” should be included to help attract investment and assist with redeveloping these BOA’s. Public spaces, green spaces, development of “pocket parks” and others issues are a viable and important part of any Brownfield Opportunity Area application and should be given due consideration and weight in the process.
So, remember it is important when someone says “Is it a brownfield?” that you ask “By what definition?”