Commissioners dismayed with state law on brownfield designation

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Commissioners dismayed with state law on brownfield designation

October 26, 2017 - 01:01
Location of Hammock Ridge property

The developer for the Hammock Ridge 104 unit garden style apartment development located on Omaha Circle is seeking a “perceived” brownfield designation from the county in order to be eligible for financial incentives and liability protections by the state in developing the property. The first phase of construction is currently underway and the law does not place a limit on when the brownfield designation must be implemented in order to qualify for the benefits.

The county’s first public hearing in considering the brownfield designation took place on Oct. 10. 2017. Commissioners were mostly in agreement that it does not make sense fiscally to designate a property a brownfield in which there is only a perception of contamination and not actual findings or proof of contamination. However this line of thinking is contrary to the state and federal laws which allows a property to be designated a brownfield even though there is just a perception of contamination (state) or potential contamination (federal/EPA). The brownfield designation sticks with the property permanently, whether or not contamination is found. Additionally, the language of the statute is worded in such a way to say that the municipality “shall” designate a property a brownfield if the property owner has sufficiently demonstrated that there is a perception of contamination. This essentially comes down as a state mandate to local governments and concerned Commissioner John Allocco enough to address this matter in front of the Hernando County Legislative Delegation Committee on Monday Oct. 16, 2017.

Assistant County Administrator Pianta explained that if the applicant receives designation, then they have to work with the state on a remediation plan.

Kiah B. Treece, an attorney with the Goldstein Environmental Law Firm, representing the developer of the property spoke before the commission. She explained that the Florida Brownfield program is an incentive based program that facilitates the redevelopment and rehabilitation of properties that would not otherwise be attractive to developers because of certain environmental concerns.

She said that brownfield sites are designated as either “perceived” contamination or “actual contamination.”

“In this case,” stated Treece, “it’s perceived contamination because of the history of excessive unregulated dumping of unknown materials. It’s difficult to tell what kind of environmental problems may arise in the future. For that reason the developer is requesting a designation so that it may benefit from financial incentives as well as liability protections down the road.”

John Allocco questioned whether contamination has been found on the property being that they are already developing the property. Treece stated that contamination has not yet been found.

Allocco asked what is in place to protect the residents of these properties. Treece replied that in construction phase, the developers take measures to make sure they are not uncovering any actual contamination, which increases costs. If anything is found, then the property owner would enter into a brownfield site rehabilitation agreement with the state and that’s a voluntary agreement between the developer and the state to cleanup the contaminated property.

Wayne Dukes stated, “I used to tell my young troops, the perception of wrongdoing is wrongdoing. I didn’t know you could go out and claim you want a cost savings on a piece of property because you perceive there might be something there. That’s new to me. In most cases you don’t get money from the government unless you prove in advance that there’s a problem.”

He said he doesn’t doubt the regulation since “it’s illogical, it must be true.”

Treece clarified that a phase 1 site assessment at the property revealed the presence of “piles of miscellaneous (non-organic) debris” including tires and construction materials. She stated that if these materials are unearthed during construction, then depending on the material, they need to be disposed of at licensed facilities incurring additional costs.

Champion asked whether a brownfield designation would harm surrounding property values. Treece stated that since they are receiving funds to cleanup the property, surrounding values actually increase.

As an engineer, Chairman Nicholson stated that he advises his clients to research the property and find out everything they can about the property before they buy it. “I think we’re putting the cart before the horse,” he stated.

The property would be designated a brownfield site permanently, regardless of whether or not contamination was found.

“That just enables the developer moving forward to have that liability protection so they can feel comfortable purchasing and subsequently developing these types of properties,” said Treece.

Commissioner Holcomb stated that Omaha Circle has had a lot of dumping in the past. “If we don’t do a brownfield designation what’s the status,” he inquired.

Treece stated that yes, the development would move forward, but in order to incentivize future development in areas like this in Spring Hill, it’s an important incentive.

She added that her client would be requesting another brownfield designation for the second phase of the project, which is similar to the community currently being developed.

Commissioners were concerned that many property owners could ask for this designation and it would be opening a can of worms.

Before Treece mentioned the state statute which mandates municipalities to declare sufficiently evidenced properties brownfields, John Allocco stated, “There’s no restriction that says you have to request this before you start construction. So my statement would be since it wasn’t a concern before you started, come back to us when you find contaminants as you continue.” Commissioner Nicholson agreed with this position.

Attorney Garth Coller read aloud the EPA’s definition of a brownfield. “A brownfield site means real property, the expansion, redevelopment or reuse of which maybe complicated by the presence or potential presence of a hazardous substance, pollutant or contaminant. ”

Treece stated, “Given the language of the statute, the statute uses the word shall. It does not say may. It is not a permissive statute. It says that the local municipality must designate if the applicant meets the statutory eligibility requirements. For that reason, we believe we have made that showing… if it were to be voted down, contrary to those eligibility requirements, the county could be on the line for damages... ”

Commissioners all expressed scepticism in “perceived” contamination and Treece said that they will provide evidence of the “perceived” contamination at the second hearing on Oct. 24th.