STEPS TO STABILITY:A Report on the Key Issues Facing New York State Brownfields Policy

March 2014

On January 21, Governor Andrew Cuomo released his proposed budget for the 2014-15 fiscal year, which would modify and extend the state’s Brownfield Tax Credits (BTCs) for 10 years, provide $90 million for the state Superfund Program, and begin to revive the Environmental Restoration Program (ERP) with a $10 million allocation. Inexplicably, it eliminates funding for the Brownfield Opportunity Areas (BOA) Program. The nonprofit organization, New Partners for Community Revitalization (NPCR), that emerged during the multi-year policy debate surrounding the 2003 brownfields law, and which has been at the forefront of brownfields policy ever since, is issuing this report to help inform the public and decision-makers about the implications of the Governor’s proposal on the cleanup of contaminated sites and the neighborhoods in which they are located.

On March 4th, NPCR held a Roundtable discussion that engaged a range of interested parties – developers, community representatives, state and local government officials, environmental and tax attorneys, engineers, academicians and planners. The purpose of the Roundtable was to give stakeholders an opportunity to consider the impact of the Governor’s proposal. A consensus was not sought. Given the number and complexity of the issues and viewpoints involved, NPCR saw value in recording the views of those New Yorkers who will be working with and be impacted by a modified and reformed program, without attempting to reach agreement on an ideal approach. NPCR was seeking a clearer understanding about how the proposal would work in the real world: where participants saw program improvements, large or small, and where they saw potential for unintended consequences. Participants were encouraged to discuss likely implications of proposed changes, to assess proposed language for clarity, and to make recommendations for both substantive and linguistic changes. Participants were told that their discussion would be set forth in a report1 but, to help ensure an open and honest dialogue, they were promised that no one would be quoted and no ideas or comments would be attributed to particular individuals.

In the end, the participants expressed similar views on a number of key issues, and made a range of recommendations on others. Importantly, as discussed below, there was strong agreement that the defunding of BOA communities is not in the best interest of the state and its least prosperous neighborhoods, or the success of the Brownfield Cleanup Program for which the BOA program is creating a pipeline of projects. The consensus was that

1 Many people took time to participate in NPCR’s Roundtable, review draft documents and offer their viewpoints and ideas in the interest of helping Albany leaders craft thoughtful reform measures. While NPCR endeavored to capture the larger sense of the group and the ideas generated, the conclusions and recommendations presented herein are solely those of NPCR, and draw from its years of research, on-the-ground experience and the guidance of its board and others in previous forums and roundtables.

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the BOA program has been underfunded and understaffed since its inception and should be given a reasonable opportunity to fulfill its promise as a catalyst for thoughtful, community-supported, coordinated urban and downtown revitalization throughout the state. There is agreement that BOA works in tandem with the state’s other brownfield programs, filling a resource gap, particularly in poor neighborhoods and communities of color which are disproportionately impacted by multiple brownfields. BOA is advancing area-wide community-supported redevelopment strategies, creating value and strengthening the market in poor neighborhoods with a history of disinvestment and decay.

EXECUTIVE SUMMARYWhile stakeholders are generally pleased that Governor Cuomo has issued a brownfields proposal, there is considerable dissatisfaction with the proposal as currently drafted. The many questions raised and ideas discussed at the Roundtable are detailed below. To summarize the larger consensus issues, the stakeholder discussion would indicate that, the four changes listed below would result in vastly increased support for the proposal, and would offer the best balance of costs and benefits for most New Yorkers, while achieving the Governor’s objective of targeting the state’s resources to projects that need the support.

1. BOA - Restore the BOA program to its original annual funding level of $15 million – to make the important connection between thoughtful local planning, coordinated development within communities and the incentives offered by both the Brownfield Cleanup Program and Environmental Restoration Program, thereby creating strategic revitalization opportunities for poor neighborhoods and communities of color. To increase cost effectiveness of brownfield cleanup and redevelopment resources, the state needs to put more – not less – emphasis on planned redevelopment of clusters of strategic brownfields, as opposed to piecemeal incentivizing of individual brownfield cleanups. To date, the state’s $46 million BOA investment is creating and strengthening the market in 126 poor communities, advancing over 12,000 sites. The $15 million requested for BOA is a fraction of what is available for many single projects in the Brownfield Cleanup Program.

2. New Doors to Access Tangible Property BTCs - Create two new “doors” for tangible property BTCs for projects built consistent with a BOA and for affordable housing projects. These have already been acknowledged in the Governor’s bill as worthy of increased tangible property incentives, but for many or most projects in these critical categories, the tangible property incentives would not be available:

The heart of the reform in Governor Cuomo’s proposal would create two gates through which applicants may pass in order to access various tax credits. The first gate – through which a project would receive site preparation tax credits – would remain as-of-right for most projects (though eligible costs are significantly reduced). It is through the second gate – for tangible property tax credits – that Governor Cuomo seeks to achieve “targeting” of state dollars for projects in need. As proposed by the Governor, this gate has three doors through which an applicant can access tangible property tax credits: i) sites which meet the vacancy test (where the site has been vacant for at least 15 years, or has been both vacant and tax delinquent for at least 10 years); ii) sites which meet the Upside Down Test, where the applicant must demonstrate that the site is economically "upside down" (i.e., it is worth less in the absence of contamination than the projected cost of remediation); or iii)

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sites that satisfy the Priority Economic Development (PED) Project Test – which has strict jobs generation requirements. In addition, the Governor’s proposal would increase the amount of tangible property tax credits (the “bump-ups”), for sites in En-Zones (10%); sites conforming with a BOA (5%); and affordable housing projects (5%). However, these “bump ups” are only available to projects that are eligible to pass through one of the 3 doors.

3. Vacancy Definition - Amend the vacancy “door” for tangible property BTCs so that there is a date certain (such as July 1, 2014) by which a property must be vacant for 15 years to meet this test. Restricting the 15 year vacancy test to a look backwards only, will ensure that property owners aren’t rewarded for keeping property vacant going forward. And, in recognition of the difficulty proving vacancy over such a long period of time, as well as the interest in encouraging more sites in distressed areas to participate, and, only if linked to a firm date connected to a backwards look, reduce to 5 years the amount of time that a project must be vacant in order to satisfy the vacancy test for tangible property BTCs.

4. Grandfather Provisions – Amend the Governor’s proposal so that all changes to the site preparation tax credit calculation and tangible property eligibility will affect only those projects that enter the Brownfield Cleanup Program (BCP) after July 1, 2014, defined as those projects that receive a notice that their request for participation has been accepted after July 1, 2014 . Many projects currently in the program have based their planning and financing on the current rules, and would be in danger of default if the rules change now. This would create a particularly acute problem for affordable housing and other important projects in weak market areas. In addition, it would likely open the state up to significant lawsuits; and, it creates a political problem in that for many developers currently in the BCP, no legislation is better than the reform bill.

BROAD POLICY RECOMMENDATIONSThough it was not the intention of NPCR to seek agreement on the various aspects of the Governor’s proposal, it became clear in the discussions that there were a number of items on which there was little or no disagreement. To the extent there were differing views, these are discussed below (without attribution).

1. Restore $15 million in BOA Funding. NPCR has, on a number of occasions, drawn attention to the disconnect between the Brownfields Cleanup Program, administered by the NYS Department of Environmental Conservation (DEC), and the Brownfield Opportunity Areas (BOA) Program, managed by the NYS Department of State (DOS). Sizable tax credits have been available for both the cleanup (“site preparation” credits and groundwater remediation credits) and the redevelopment (“tangible property” credits) of brownfields, regardless of their location. At the same time, BOA grants have been given to communities for the development of revitalization strategies in blighted areas, focusing on the role that redeveloped brownfields might play in achieving economic and neighborhood revitalization goals. While BOA applicants were told to work with brownfield owners, there was never a reason for owners or developers of these properties to cooperate with – or even speak to – the community planners. Brownfield tax credits have been awarded as-of-right, even if a project conflicted with community plans and priorities.

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The Governor’s proposal purports to fix this anomaly, by creating a stronger connection between the tax credits and Brownfield Opportunity Areas. Amendments proposed in the Governor’s budget would grant developers larger rewards for working in cooperation with BOA plans. This is a thoughtful and logical connection that could make a difference for hundreds of blighted neighborhoods around the State. The problem is that the fix is illusory, because: There are no BOAs. No community has yet made it through the entire DOS process (though 16

communities are likely to achieve BOA certification in 2014); and The budget, as proposed, includes no funding for the remaining 110 communities that have worked hard

and raised neighborhood expectations via Step 1 and 2, but which now have no resources to advance to Step 3 and secure designation as a BOA.

The arguments for continued funding of communities seeking BOA designation begin with the progress made within the program, despite the many bureaucratic obstacles to success and a significant economic downturn. The fact that so many communities have nonetheless done so much in furtherance of revitalization is a testament to both the need for resources in our most challenged urban and downtown areas, and the energy and vision community members are ready to put into such an effort.

Among the obstacles, BOA program participants have faced are:

Relatively small grants, ranging from $21,159 for the Village of Perry in Wyoming County to $1.5 million for Wyandanch on Long Island (in the most segregated community in NYS). A total of $46 million has been spent on BOA grants over the course of 10 years, involving some 12,000 contaminated sites 2 compared to the $1.25 billion that has been awarded via refundable brownfield tax credits to brownfield developers;

Waiting periods ranging from several months to 2 years in the awarding of BOA grants; The need to access other resources up front, since BOA is a reimbursement program; The fact that more than one third of all moneys allocated for BOA funding has never been available, due to

the requirement of a legislative Memorandum of Understanding between the Governor and the two houses of the Legislature3;

In the early years of the program, responsibility was split between DOS and DEC, slowing the review time for applications, work plans and proposals;

The heavy demands of each of the three steps to achieving BOA status, each step requiring a new set of tasks, separate application, a new process for the awarding of grants, and another waiting period; and

The lack of any incentive for brownfield owners and developers to work within the BOA planning process.

Despite the impediments, there are 126 communities across the state participating in the BOA Program, involving over 12,000 contaminated sites, with an estimated 100 more neighborhoods waiting to get in (see attachment #5). Those who have already finished at least one stage of the process have accomplished a great deal, including dozens of marketing studies, site assessments, vision plans, meetings with landowners, banks, developers and community members. A growing pipeline of development sites has emerged (see attachment #2). There is also strong evidence that BOA activity is responsible for stimulating strategic involvement in the BCP, with a large amount of cleanup activity already taking place where BOA communities have made the most

2 See Summary of NYS BOA Grantees by Region and By County, Dec. 2013, http://npcr.net/pages/legislation_and_policy/facts_figures.html 3 See Funds Available for BOA Program, Oct. 2013, http://npcr.net/pages/legislation_and_policy/facts_figures.html

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progress (see attachment #3). In addition, dozens of cleanups are taking place outside of the BCP. For example, 39 sites in BOA study areas have enrolled in the NYC voluntary cleanup program.

After years of struggle and persistence in an underfunded, understaffed and otherwise demanding program, strong BOA communities are emerging and momentum is building despite the obstacles. Defunding the program at this moment would slow, if not reverse, the momentum, and, for the scores of communities unable to go to the next step, investments to date will have been lost. By defunding the program, the State is not only squandering the capital and human investment that the program represents, but is cutting off real promise and opportunity in communities most blighted by brownfields and most in need of support.

2. Create New Doors to Access Tangible Property BTCs. The Governor’s proposal should be amended to create two new “doors” for tangible property BTCs: i) for projects built consistent with a BOA; and ii) for affordable housing projects. These have already been acknowledged in the Governor’s bill as worthy of increased tangible property incentives, but for many or most projects in these critical categories, the tangible tax credits would not be available.

The Governor’s proposal responds to repeated criticisms regarding the historical high cost of the tax credits and the lack of targeting, leading many to believe that valuable “incentives” are going to some or many projects that would have been advanced without or with fewer tax credits. This is because, under the current program, tax credits for development (the tangible property credits) are as-of-right for all participants in the Brownfield Cleanup Program, with no showing of need or public benefit. The proposed amendments allow all participants in the BCP to receive tax credits for cleanup, but the more lucrative development credits are only available for upside down properties, long vacant or tax delinquent sites, and large projects meeting exacting jobs & economic development criteria. Roundtable participants spoke of these as the three “doors” to tangible property credits. All agree that these are too restricting and that there are good reasons to expand the investment these credits represent by adding at least two new “doors,” one for conforming projects in BOAs and one for affordable housing projects.

It is difficult to predict how often the vacancy door and economic development door will be accessible, particularly given the need for the State to further define key terms, such as “vacancy” and the required promulgation of regulations. The “Upside Down” door, all agree, would largely be used by Upstate projects, where property values are much lower than they are Downstate.

What is clear is that many worthy projects – both Upstate and Downstate - will be left without needed resources. Of particular concern are those projects that play a key role in the revitalization of blighted communities; highlighted as particularly important by the Roundtable participants were projects that emerge from a BOA plan and affordable housing projects.

BOA Door - BOAs are the State’s only true planning and neighborhood revitalization program, and, as discussed above, both the State and scores of communities around the state have already made significant investments crafting BOA revitalization strategies. They are overwhelmingly in poor neighborhoods and communities of color, whose demographics reflect high poverty and unemployment, (see attachment #4). Brownfields in BOAs are

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frequently viewed as posing too much risk for private investment without the leverage of significant public incentive. The tangible property credits can change that. Development in the context of a community supported strategy is more likely to be synergistic than investments in projects not a part of a larger vision. And, as discussed above, by offering the tangible credits for projects that conform to a BOA plan, the incentives will also serve to inspire collaboration between the community and brownfield owners and developers. This will help to advance the revitalization efforts and realize the vision that a BOA plan represents.

There is additional assurance of productive investment in the fact that the Department of State will be certifying strategic sites as consistent with a BOA plan.

Affordable Housing Door - Because of the high cost of construction in New York, local, State and federal housing agencies offer subsidies to bridge the affordability gap between the housing cost and the rent/price that poor New Yorkers can pay. But there are never enough housing dollars to meet the demand, even on sites without brownfield conditions. On properties with brownfield conditions, unless additional money is available to cover the costs of cleanup, brownfields cannot be used for affordable housing.

Adding an affordable housing “door” to access Tangible BTCs can be done with confidence that the state’s resources won’t be wasted. That is because subsidized affordable housing projects must comply with strictly enforced housing agency cost and developer fee guidelines. In fact, affordable housing projects are the only category of end uses where the state is assured that every penny of its brownfield tax credits is going to projects where there is clear and documented need.

It is well-understood that the Governor’s proposal is designed to cut the costs of the brownfields incentives, but there remains the overarching goal to encourage more cleanups and more economically beneficial redevelopment. In working to ensure that valuable funding isn’t given away to projects that can readily attract private investment and that would likely be built with or without state assistance, the program should not be trimmed so drastically as to close out brownfields that would not get remediated and redeveloped without funding. It is particularly important to fund projects that add strategic value and synergy to economic and neighborhood revitalization efforts.

Other options for awarding incentives: Several other proposals suggested by Roundtable participants would shift the overall structure of the program:

Eliminate Access Gate for BTCs Altogether - An alternative proposal raised at the Roundtable and generally well received by the larger group, was to eliminate the tangible credit doors altogether, keeping the tangible property BTCs as-of-right, but lowering the hard cap on all projects – perhaps to $10 million, while maintaining the soft caps (multiples of site preparation costs), while instituting the “bump ups” in the Governor’s proposal that would raise the cap for targeted locations and end uses. While this approach would not prevent the tax credits from going to projects that may not need support, it would trim the per-project cost. In addition, there would be significant time and cost savings associated with not having to prove that a project meets a particular test to get through one of the Tangible BTC “doors.” The suggestion is elegant in its simplicity and addresses many of the concerns of developers by making the tax credits predictable, while reducing the state’s financial exposure.

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Deep subsidies for lower-income community projects – The idea of this proposal is to encourage affordable housing, open space and community uses in low income areas by fully funding remediation, by awarding up to 130% of costs to help pay for the cost of financing and other related expenses (100% of cleanup costs; 15% to cover the cost of money over the time it will take to secure approvals and collect the BTCs; and 15% to cover the cost of managing brownfield conditions). It was suggested that the cost of off-site groundwater cleanup could be included, which would benefit the state. In addition to the cleanup costs, this approach calls for allowing a project to generate limited Tangible BTCs - up to $5m or 10% of Tangible costs, reflecting the state’s support of affordable housing or other public benefit uses on brownfield sites in poor communities. While there is unanimous support for promoting affordable housing projects on brownfield sites, the group was not overly supportive of this proposal only because it fails to address a range of other issues viewed as priorities.

Other suggestions generally maintained the current structure, with some modification: The first proposal above urges that strategic BOA sites and affordable housing be awarded tangible

property credits, but there are other categories of proposed uses that could be added as well to advance important state policies. These might include green buildings, projects that support transit oriented development (TOD), alternative energy projects, and projects that emerge from the state’s Land Banks.

To the extent that reforms are required to stop funding certain high end projects, amendments could be added that spell out a list of excluded uses or locations for the tangible credits.

Rather than categories of projects eligible for tangible credits, a point system could be developed to incentivize development in specified locations or for certain types of projects. A development might earn so many points for being in an En-Zone, for example, and additional points for incorporating green design or providing low income housing.

The program could be downsized to just offer Site Prep BTCs at higher levels of funding. There was some discussion about refocusing the program to provide incentives for development for

“distressed” and “underutilized sites,” but also a recognition that such an approach might have the perverse consequence of encouraging the perpetuation of these conditions.

3. Amend the Vacancy Definition . Amend the vacancy “door” for Tangible BTCs to fix the end date for measuring the years of vacancy, using the effective date of the legislation . This will ensure that property owners aren’t rewarded for keeping property vacant.

Many participants questioned both the mechanics and the value of offering tangible tax credits for the development of vacant land. There are, of course, any number of reasons why a site might be vacant. There is no good reason to reward site owners caught up in litigation over land ownership or use, or those merely holding on to property speculatively or opportunistically in anticipation of a later increase in value. If the vacancy is actually attributable to contamination, it seems likely that the site would also be upside down (at least in Upstate areas). If there is only light contamination, the vacancy may exist simply because the site is in a blighted area, in which case, the priority should be toward cleaning up the badly contaminated sites or those considered strategic in terms of planning.

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The vacancy “door” may well be justified in that vacancy is a bright-line hallmark of blight. Still, many participants talked about the need for a better and more circumspect definition of what vacancy would mean; whether, for instance, the use of land for parking or other lesser uses, perhaps unauthorized, would render a property “not vacant,” making a site ineligible. The question of how 15 years of vacancy will be proved also went unanswered.

Some stakeholders promoted the suggestion that the term “underutilized” might be more useful than “vacant” to describe property deserving of a higher level incentive. Here again, the term would require clear definition. And again, it would be important to make the definition apply at the time it becomes law to avoid the problem of purposeful underutilization to earn tangible credits.

4. Expand Grandfather Provisions . Change provisions so that changes to the site preparation tax credit calculation and tangible property eligibility will affect only those projects that enter the BCP after July 1, 2014, defined as those projects that receive a notice that their request for participation has been accepted after July 1, 2014. The Governor’s proposal does not offer full grandfathering for projects currently in the program. Instead, it would make some changes effective for sites accepted into the BCP after June 30, 2014; other changes would take effect on July 1, 2014, and would apply to all sites, including those currently in remediation or which have received a certificate of completion (CoC). In the absence of full grandfathering for projects that have entered the Brownfield Cleanup Program (BCP) before July 1, 2014, projects would be subject to retroactive changes. As a result, many projects currently in the program that have based their planning and financing on the current rules, would be in danger of default. This would create a particularly acute problem for affordable housing and other important projects in weak market areas. In addition, this might open the state up to significant lawsuits.

OTHER IMPORTANT POLICY RECOMMENDATIONS Related Party Costs - For purposes of calculating the amount of BTCs generated, the Governor’s proposal

would eliminate all costs paid to "related parties" (10% common ownership) from site prep, on-site groundwater, and tangible property credit components. This change seeks to address concerns of the NYS Department of Taxation and Finance about inappropriate padding of costs by related parties. There was concern that the Governor’s proposed solution would make NYS rules inconsistent with the federal tax code, and also inconsistent with the commonly accepted practice in the affordable housing industry whereby development is often done by developer-builders or developer-general contractors (GCs). To this end, it is important to note that payments to developer-builders and related party GCs are permitted as eligible basis for federal and NYS housing tax credits. There is no concern over “padding costs” in affordable housing projects because: i) in cases where the ownership entity utilizes a related party, all payments to that related party are approved by lending institutions and the bank’s 3rd party engineers; and ii) the government housing agency must review and pre-approve the parties and the amount of each contract, so there are built-in controls. In addition, this is a standard business practice in the affordable housing industry, and allows for the delivery of affordable housing at a lower cost. It was suggested that for affordable housing projects, costs associated with related parties be permitted for purposes of awarding site preparation tax credits.

Site Preparation Tax Credits – Consider other special provisions for affordable housing that would allow for higher percentages and loosening of new rules on soft cost limitations. Soft costs, such as environmental

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monitoring, and legal, tax and financing costs associated with the contamination conditions are all real costs that need a source of funding if an affordable housing project is going to be able to achieve it affordability goals.

Termination Provisions – Current law denies tax credits to sites that do not receive a CoC by December 31, 2015. Under the Governor’s proposal, a site for which a brownfield cleanup agreement (BCA) was entered into before June 23, 2008 would be terminated from the BCP if it does not obtain a CoC by December 31, 2015. A site with a BCA dated after June 23, 2008 and before July 1, 2014 would be terminated unless the CoC is issued by December 31, 2017. Terminated sites could reapply, subject to meeting new eligibility criteria and subject to the current rules and tax credit structure, (e.g., tax caps would apply). It was suggested that the Governor’s proposal be amended so that sites would lose BTCs only, but would not be terminated for other purposes – such as the BCP liability protections - for an untimely CoC.

Redefine BOA - to include BOA Study Areas so that mature BOAs can receive the benefits of certification (including the tangible property BTC bump up).

Create a new Municipal Liability Exemption for Petroleum Sites - Currently, municipalities (with taxing authority) may be subject to full environmental liability upon in-rem tax foreclosure of petroleum contaminated sites. While municipalities enjoy liability exemptions under federal and state hazardous wastes statutes when acquiring title through foreclosure, no such exemption exists under New York's Navigation Law, Article 12. It has been suggested that providing such an exemption would greatly enhance brownfield redevelopment in New York by empowering municipalities to foreclose on such tax delinquent petroleum contaminated sites and then take possession and control of such sites and facilitate their cleanup and reuse without fear of cleanup liability.

It has also been suggested that this liability exemption should be extended to municipal Land Banks, which take over delinquent, foreclosed, and other underutilized properties. The Land Banks, whose role includes rehabilitating and managing these properties, should not be subject to the “participation in management” exclusion under the municipal liability exemption.

Reporting – There was considerable discussion and disagreement on the value and efficacy of creating new reporting requirements. Nevertheless, NPCR is recommending that the Commissioner, with advice from the Empire State Development Corporation, should be directed to identify appropriate metrics that will promote a useful evaluation of the costs and benefits of the programs; and a new requirement should be added to the brownfield cleanup agreement (BCA), and therefore made contractually enforceable, that requires recipients of BTCs to provide information about their project that will promote evaluation of the costs and benefits of the program going forward.

ATTACHMENTS1. Addendum to March 4th Roundtable on Gov’s proposal: Key Facts & Clarifications

Needed 2. Compiled Pipeline Data on BOA Study Areas3. BCP Cleanups in BOA study areas - chart

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4. Demographics from 22 BOA Study Areas5. Partial list of communities being shut out of the BOA program6. List of Roundtable Participants and Contributors to Report 7. Background on NPCR

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Attachment #1

Gov. Cuomo’s Brownfields Budget Proposal - Key Facts & Clarifications Needed ADDENDUM TO REPORT ON NPCR March 4, 2014 ROUNDTABLE

On Jan. 21, Governor Andrew Cuomo released his proposed budget for the 2014-15 fiscal year. Only one change was made during the 21-day Amendments, and stakeholders are looking for negotiations to take place with the Legislature in connection with passage of the budget, which many expect to pass on time – before April 1st. This Outline4 was crafted as an Addendum to NPCR’s March 4th Roundtable, to help capture the details on timing, definitions, and logistical clarifications needed in the Gov.’s proposal. This document was issued as a draft on Feb. 25th and again at the March 4th Roundtable. It has since been amended to flag clarifications still needed.

Effective Dates and SunsetsThe bill does not offer a full grandfathering for projects currently in the program. Instead, it would make some changes effective for sites accepted into the BCP after June 30, 2014; other changes would take effect July 1, 2014, and would apply to all sites including those currently in remediation or which have received a certificate of completion (CoC)

Open questions:397 Should the effective date be expressed in terms of application date rather than acceptance?

There is unpredictability whether DEC will act on applications by 7/1/2014. Potential unfairness if DEC acts arbitrarily to grant some applications and not others?

Current law denies tax credits to sites that do not receive a CoC by Dec. 31, 2015. Under the bill, a site for which a brownfield cleanup agreement (BCA) was entered into before June 23, 2008 would be terminated from the BCP if it does not obtain a CoC by Dec. 31, 2015. A site with a BCA dated after June 23, 2008 and before July 1, 2014 would be terminated unless the CoC is issued by Dec. 31 , 2017. Terminated sites could reapply, subject to meeting new eligibility criteria and subject to the current rules and tax credit structure, (e.g., tax caps would apply).

Open questions:Is the automatic termination provision necessary – given DEC authority to terminate sites not making substantial progress?

4 This document builds on the outline prepared by Dale Desnoyers, of Allen and Desnoyers LLP, and Phil Bousquet, of Bousquet Holstein PLLC , for NPCR’s Jan. 30th Forum and preliminary feedback received from Mark Pennington of John E. Osborn P.C.

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What is the procedure/criteria for reacceptance, (e.g., what if a site is largely remediated but could not obtain CoC due to procedural issues, such as failure to record env. easement in time?)

Why terminate for untimely CoC, rather than simply not qualify for tax credits? Once cleaned up, shouldn’t sites still be able to secure release/covenant not to sue? Should termination provision be limited to sites enrolled pursuant to a court order?

What happens to the costs incurred subject to the earlier agreement? Are they stranded once a party enters a new agreement pertaining to a site that has been terminated per this provision. Costs that count toward site prep and tangible BTCs are those incurred pursuant to this agreement. With a new agreement do you start off at zero or will previous costs be allowed to “roll-in” under the new agreement? Should be spelled out in statute and not left to the agencies.

Sites accepted into the BCP after July 1, 2014 would have to receive a CoC by December 31, 2025 to qualify for any BCP credits. No sites accepted after December 31, 2022 would be eligible for BCP credits.

Open questions:415 Final sunset. Is it necessary to have a hard cutoff? Accepted on or before 12/31/2022 and in good

standing/making good faith effort?

Sites accepted into the BCP after June 30, 2014 – BASICS Definition of a “Brownfield Site” is amended in the bill: An eligible site is one which has contamination at levels exceeding NYSDEC soil cleanup objectives, or other regulatory/health standard, for the anticipated use.

Open questions:387 Brownfield site definition. “reasonably anticipated use, as determined by the Department.” DEC has

clarified that they will look at current zoning or zoning changes in process. This clarification should be in statute, or regulations.

Class 2 sites are eligible provided the applicant is a volunteer and no potentially responsible party is identified to fund the investigation or cleanup.

Open questions:Is there a timeframe for identifying RPs?

Consider a waiver for sites subject to an enforcement order, e.g., multi-site MGP sites, where ordered party does not own site and applicant is a volunteer?

An investigation report sufficient to support eligibility is required upon application.Open questions:388 What criteria will DEC look at to determine whether a site requires remediation (different criteria

apply based on different intended uses).

The cost of obtaining data can be significant. If required prior to acceptance into BCO, such costs will not qualify for tax credits.

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Changes render moot prior case law. Since the inception of the BCP/BTC program, there have been many lawsuits challenging the NYSDEC’s eligibility determination. The lawsuits have resulted in a body of case law, including decisions by the State’s highest court, relative to the definition of a brownfield. The bill changes the definition of a brownfield site, thus rendering this case law irrelevant.

Open questions:Is the change in the definition likely to result in new litigation?

Eligibility for Site Preparation BTCs - All sites eligible for the BCP remain eligible for Site Preparation BTCs as-of-right with one caveat: strategic sites in a Brownfield Opportunity Area (BOA) must obtain a certification from the Secretary of State that the site conforms to the BOA plan (this is also required for TPCC below).

Open questions:389 Is there a definition for “strategic site”? If not, is one needed or should the Secretary include in rule-

making?

What about non-strategic sites? If they are non-conforming, how does it affect their eligibility for BTCs?

It appears that non-conforming strategic sites are not permitted to enter the BCP. Is that the intention?

Why limit this to strategic sites? The catalytic importance of sites change as time goes by and development occurs.

406 Include BOA study areas where goals and priorities have been substantially identified? And direct Secretary to include in rule-making?

Separate Eligibility for the Tangible Property Credit Component (TPCC). In order to be eligible for the TPCC, an applicant must demonstrate to the satisfaction of NYSDEC that the site meets one of three tests: a. The Vacancy Test. The applicant must demonstrate that the site has been vacant for at least 15 years, or

has been both vacant and tax delinquent for at least 10 years; Open questions:

There is a lack of clarity on the definition of “vacancy.” E.g., would a lot used for parking that generates revenue be considered “vacant”?

Guidance is needed on how to prove that a site has been vacant 15 years.

Is it the intention to effectively eliminate urban sites (particularly in NYC outer boroughs) from eligibility?

b. The Upside Down Test. The applicant must demonstrate that the site is economically "upside down" ( i.e., it is worth less in the absence of contamination than the projected cost of remediation); orOpen questions:389 This assumes that an applicant will already have scoped remedial options and costed them out, so

the entry burden is higher than a Phase 2. Is this level of analysis required at application, or only later?

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Will Track 1 be used when calculating cost of cleanup for upside down analysis? Can it be used?

Guidance is needed for appraisals, including the way that property is valued. Th ere are three ways to appraise a property. Using an income-test or "replacement value", a former gas station site might qualify for the "upside-down" test but perhaps not if based on property values in the area (some former gas stations now sell for $25 million in NYC). Will DTF or DEC be able to second guess the particular methodology? If they do, would the applicant be exposed to misrepresentation claims? Are there better, alternate tests to determine mismatch in cleanup costs and property values?

Consider that remediation costs are notoriously difficult to estimate, as evidenced by the fact that cost cap insurance was for many years unavailable because many projects that obtained the coverage experienced actual cost over-runs (and thus large claims) that exceeded estimates by several multiples. This product is again being offered, but the terms are very limited, again, reflecting the extreme volatility of remediation cost estimates.

Why measure against uncontaminated value of property?

c. The Priority Economic Development (PED) Project Test. The applicant must: (1) obtain certification from the local municipality that the project is consistent with local development/revitalization plan, and (2) obtain certification from NYS Department of Economic Development ("DED") based on a demonstration that it will meet the criteria to qualify as a Priority Economic Development Project ("PED Project") between the time of application and three years after CoC issuance. A PED Project must fall into one of the categories noted below, must create more than a prescribed number of "net new jobs" in NYS, must make "significant capital investments," and must meet other requirements that DED is to prescribe in regulations. Eligible PED Projects would be:

i. software development or new media businesses creating 50+ net new jobs in NYS;ii. manufacturers, agribusiness, scientific R&D, or corporate HQs creating 100+ net new jobs in NYS;

iii. financial service, distribution, or back office operations creating 300+ net new jobs in NYS; andiv. other businesses creating 300+ net new jobs in NYS and determined by DED to be a PED Project.

Open questions:389 What level of analysis is required to satisfy the Priority Economic Development (PED) project criteria?

390 What is the timing for regulations re: significant investment/PED criteria?

Does DEC contemplate a party can apply without seeking eligibility for tangible credits at application, and then make a later request for eligibility determination?

Need timeline for EDC eligibility determination. (There is a deadline for DEC to make such determinations on 391 – does that assume action by EDC?)

How is responsibility shared? Does DEC make the determination without input from EDC?

What happens later if the jobs don’t materialize?

Seven categories of PEDs are listed. Consider adding two additional categories: i) projects certified by the Secretary of State as conforming with a BOA; and ii) affordable housing sites certified by the State housing agency as conforming to definition of affordable housing, as defined elsewhere in the bill?

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410 At what point must EDC approve the project?

Exclusion from TPCC for cross-contaminated or previously remediated sites Open questions:

Why exclude cross-contaminated sites if the applicant is spending money to remediate property?

Why exclude remediated sites if more remediation is required to put the property to its intended use?

New Applicable Percentage and Timing Rule for TPCC. The TPCC would have an across-the-board base of 10% of eligible costs and new "bump-ups" to the applicable percentage – not to exceed 24%, in the aggregate – calculated as follows:

d. An additional 10%, for sites located in an Environmental Zone. e. An additional 5%, for sites located in and certified as conforming with a Brownfield Opportunity Area

(BOA). f. An additional 5% for qualified affordable housing units (on the AH units only).

The taxpayer must submit, in the manner prescribed by the Commissioner, information sufficient to demonstrate that the site qualifies for the En-Zone (10%), BOA (5%), or affordable housing (5%) bump-ups.

Open questions:410 “manner prescribed by the commissioner” – does Tax and Finance dictate elements of showing to be

made to enter the doors, as well as for the bump ups? Or just for bump ups?

What is the rationale for having a higher bump up for En Zones than for BOAs?

For sites accepted after the July 1 effective date, taxpayers would have a new "floating" five year window in which to place qualified tangible property in service. The TPCC is allowed for the tax year in which qualified tangible property is first placed in service (or the year the CoC is issued, if later), for up to five consecutive taxable years from the "start of redevelopment" of the site, provided that all credits must be claimed within 10 years after CoC issuance. (Note: this reflects changes made by the 21-day amendments.)

Open questions:404 Placed in service rule. What is meant by 5 consecutive years?

What is meant by "start of redevelopment"? That phrase seems unnecessary if the first year is the year in which QTP is first placed in service on the site (or CoC is issued, if later)

The Bill would eliminate the BCP tax credits for property taxes and environmental insurance premiums for sites accepted into the BCP after the proposed effective date of July 1 2014.

The Bill would create the BCP EZ Program, a new fast-track voluntary cleanup program that would provide for fewer procedural hurdles, the same substantive cleanup requirements and liability relief, but no tax credits. Sites in the BCP EZ Program can employ site background values in the remedy.

Open questions:400 EZ program. Clarify what is meant by relief from procedural requirements. What changes are being

made to public participation procedures? Procedures for submittal and review of deliverables? Is the NYC OER program instructive?

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401 What level of site characterization is needed to determine that the site is not a significant threat? What happens if later investigation shows a significant threat? Is the site safe from having to go through state superfund program?

“procedural requirements the department deems appropriate” – this is vague and subject to inconsistent application

Changes effective July 1, 2014 (without regard to date of acceptance)The bill proposes some changes that would significantly alter the calculation of the BCP credits for sites currently in the program. This would be a departure from the "grandfathering" given to BCP accepted sites when the 2008 law changes were passed. These changes are as follows:

Severe cutback of costs used to calculate site preparation and tangible property credit components:g. Elimination of all costs paid to "related parties" (10% common ownership) from site prep, on-site

groundwater, and tangible property credit components Open questions:

5. It has been suggested that there is no tax incentive to do this since the related party payees have to pay federal and NYS (and NYC if applicable) income tax on the payments, which exceeds the after-tax benefit of the BCP credit; the payor must capitalize (not deduct) the cost into federal basis.

6. Does federal tax law already provide sufficient detailed safeguards about related party payments and deal specifically with capitalized developer fees?

a. Elimination of site prep costs unless paid in connection with site's qualification for CoC and are directly attributable to activities specified in NYSDEC decision document (may include remediation of lead, asbestos, and PCB in buildings that will remain on-site) and are directly associated with actual site preparation-related to construction.

Open questions:410 Any guidance for DEC in identifying site prep costs in the decision document?

410 Does this create the risk of inconsistent level of detail in different decision documents leading to different dollar impacts in different projects?

411 Guidance on “actual site preparation” related to construction?

Consider implications for projects, such as federal low income housing tax credit deals, where indirect costs would be required under federal tax law to be included in the land basis.

b. Limits eligible costs for tangible property component to costs associated with actual construction of tangible property incorporated as part of the physical structure and costs (not otherwise allowed as site prep) to prepare the site for building construction

Open questions:405 Tangible property credit/site preparation. Need guidance on costs includable as tangible property

but not properly included in site preparation component.

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Change in cost accounting method to require all BCP credit claims to be calculated on the cash method of accounting without regard to federal tax accounting method.

Expanded En-zone definition reinstated; En-Zones based on most recent census.

The changes below would also be effective July 1, 2014, but may not raise "grandfathering" questions that are as significant as those raised by a July effective date for the previous items.

CoC transfers clarified. Open questions:

Is this language meant to be a limitation? Does it clarify that COCs may be transferred only to parties who hold legal or equitable title to a brownfield site (or part of it)? Or, is the new language intended to (1) confirm that a CoC may be transferred by the applicant or by any subsequent holder of the CoC [the right of a CoC transferee (subsequent holder) to again transfer the CoC is not clear under current law]; and (2) confirm that the CoC may be transferred to ANY successor to a "real property interest" in all or part of the BCP site ("real property interest" includes, for example, legal or equitable title or a leasehold) and not just a transfer of the full legal title?

Federal Code Section 198 costs eligible for 3X/6X TPCC limit calculations: Code section 198 permitted taxpayers to elect to treat certain cleanup costs as a deductible expense (like depreciation). The Tax Dept’s position has been that those costs would not be eligible for the site preparation component, and therefore would also not be counted in determining the 3X/6X "soft cap" on the tangible property credit component. This change would allow those costs to be counted for the soft cap, but would not change the calculation of the site prep component. Code section 198 expired in 2011 but efforts are underway to re-enact it.

Timeframes to start work and submit subsequent work plans added, which timeframes provide for commencement of work within 30 days of work plan approval and timely submission of subsequent work plans.

Reduction of citizen participation requirements; eliminating the requirement to evaluate alternatives except for those sites seeking TPCC.

Relaxation of Track 1 requirements for long term soil vapor intrusion systems; providing that use of such systems for a period in excess of 5 years would not preclude eligibility for a Track 1 cleanup.

Final Engineering Report requirements amended to add IRM data and cost certification by the engineer.

Open questions: Is it appropriate to require engineers to certify costs?

Elimination of oversight costs for Volunteers.

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Two new grounds for revocation of CoC: (1) misrepresentation in application for tangible property component eligibility; and (2) the environmental easement no longer provides an effective or enforceable means of ensuring performance of OMM or restricting future use

Open questions:399 Penalty for misrepresentation of facts seems a harsh remedy for a priority economic development

showing, which is based on projections, not facts. How would this apply in this context? Fine tune language? Specify who has the burden?

Unclear what circumstances would make an easement unenforceable? Better to phrase in terms of party failing to live up to its O&M obligation?

Other Changes:Hazardous waste fees and assessments exemptions broadened (e.g., to USEPA orders, to NYC BCP)

Developer's Brownfield Report (Form DTF-70) eliminated

Tax Department to issue report for pre-2007 BCP tax credit data

BCP oversight board eliminated.

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Attachment #2To date, the state has awarded $46 million in BOA funds to advance 12,075 potential brownfield sites in 126 communities across New York State:

Region

# of Brownfield Sites in BOA Study Areas

# of acres

Amt of BOA Grant dollars Awarded

Region 9 – Cattaraugus, Chatauqua, Erie, Niagara, Wyoming 2,014 20,186 $8,687,656

Region 8 – Cayuga, Chemung, Genessee, Monroe, Orleans, Ontario, Wayne 872 5.114 $3,777,446

Region 7 – Broome, Cortland, Chenango, Onondaga, Oswego, Tioga 593 21,868 $4,524,141

Region 6 – Herkimer, Jefferson, Oneida, St. Lawrence, Lewis 985 13,619 $3,400,828

Region 5 – Clinton, Franklin, Fulton, Saratoga, Warren, Washington 523 22,690 $1,573,169

Region 4 - Capital Region: Albany, Columbia, Greene, Montgomery, Ostego, Rensselaer, Schenectady 2,338 17,132 $2,699,868

Region 3 – Dutchess, Orange, Putnam, Ulster, Westchester 1,741 2,836 $3,504,648

Region 2 – NYC 2,565 13,652 $12,663,436

Region 1 - Long Island (Nassau/Suffolk) 444 3792 $5,022,476

TOTAL 12,075 120,889 $45,853,668

The BOA Program is creating a Development Pipeline*: Cutting BOA will directly impact poor neighborhoods and communities of color . A review of data emerging from just 26 of the 126 BOA study areas across the State reveals that hundreds of brownfield sites are advancing through BOA, with 32 sites in development or completed by 2015:

# of sites - part of a Feasibility Study 583 sites# of sites - part of a Marketing Study 1889 sites# of sites - preliminary meetings w/Developer(s) 85 sites# of sites - preliminary meetings w/Lender(s) 25 sites# of sites - designated Strategic Sites 186 sites# of sites - Site Assessment/Cleanup Underway 171 sites# of sites developed or in development by 2015 32 sites*Compiled Pipeline Data from only 26 of 126 BOA Study Areas across NYS

Attachment #3 19

BOA Projects in the Brownfield Cleanup Program (BCP)*

Region # of Projects in the BCP # of BCP sites that are in BOAs %

Western NY 83 46 55.4%

Finger Lakes 46 5 10.9%

Southern Tier 13 3 23.1%

Central NY 17 4 23.5%

Mohawk Valley 6 0 0.0%

North Country 3 2 66.7%

Capital Region 15 9 60.0%

Mid-Hudson 66 14 21.2%

NYC 117 17 14.5%

Long Island 15 2 13.3%

TOTAL 381 102 26.8%

*NPCR analysis of NYS data: DEC & DOS – 2013

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ATTACHMENT #4BOA is an important Revitalization Tool in Weak Market communities (Excerpts from 22 BOA Study Areas across NYS):

South Buffalo BOA

Buffalo is the 3rd poorest city in the nation. 43.4% rent within the BOA and there has been a decline of homeownership by 6.4% from 2000-2010; 30% of Buffalo’s population lives below poverty; 55% of households earn less than $35,000; median income in 2012 was $30,000. Unemployment is 10.1% city-wide. 22.3% have less than a HS degree within the BOA, 9.4% have a Bachelor’s degree, 2.5% have a graduate degree in the BOA.

Olean Northwest Quadrant BOA, Cattaraugus County

BOA area with a legacy of industries: oil refineries, tanneries, glass & brick manufacturers, railroad maintenance shops, and industrial equipment & chemical manufacturers – resulted in numerous potential brownfields. Population of Olean has declined by 2.3% in the last 12 yrs. Median income was $31,400 in 2012 which is lower than the city, the county, and the 5 county regional trade area. The community is looking at BOA to help capitalize on assets to attract new industries and jobs to vacant and underutilized sites.

Lockport Tourism Focus Area BOA

Within the Lockport Tourism Focus Area, the population has decreased 7% between 2000 and 2010. In 2010 median household income was $27,291 in the Tourism Focus Area compared to $50,984 in the Buffalo-Niagara MSA. The area is in need of revitalization and the community is using BOA to help them develop a package of economic development and marketing tools to attract businesses and to capitalize on their tourism resources.

Buffalo Harbor BOA Median household income for this BOA is $22,500; and homeownership is 15%.

Buffalo River Corridor BOA

Median household income for this BOA is $30,700; and homeownership is 50%.

Tonowanda Street Corridor BOA

Median household income for this BOA is $22,300; and homeownership is 33%.

Village of Holley BOA, Orleans County

The population of Holley has remained largely unchanged for the last 50 years. According to the 2010 U.S. Census, the mean household income was $46,646, which is lower than incomes throughout the region. By comparison, the mean income during the same period was $56,420 in the county and $80,374 statewide.

First Ward BOA, City of Binghamton, Broome County

The First Ward was home to numerous industrial manufacturing uses until the late 1990s - manifested today by numerous potential brownfields. The population of Binghamton has declined by almost 50%; and unemployment in the First Ward (14%) is almost double that of the city and county. Median income is lower than the city, the county, and the regional trade area. Educational attainment is lower than surrounding areas and poverty rates are higher. BOA has dozens of vacant/underutilized parcels and property values are among the lowest in the region.

Southside Rising Revitalization Strategy - Elmira, Chemung County

Formerly a transportation and industrial hub, Elmira’s Southside was home to RR & manufacturing activity which resulted in extensive, high-density worker housing in close proximity to employers. A lack of appropriate buffering led to adverse impacts upon housing values, and the adjacent neighborhoods have severely declined over the past 40 years. BOA population and income levels continue to decline, and the city’s efforts to support revitalization have failed to gain traction across the Southside. The marketplace is not robust enough to justify new construction activity absent public subsidies.

Bull’s Head BOA, Rochester

Low income / marginal commercial market / very blighted.

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Vacuum Oil-South Genesee River Corridor BOA, Rochester

The Vacuum Oil BOA is a 147-acre Study Area located along the Genesee River within a dense residential neighborhood. High poverty rates and low levels of investment are directly tied to the adverse impacts of the former Vacuum Oil Refinery site, which includes a series of known brownfield properties. The Vacuum Oil site separates residents from the recreational and aesthetic benefits of the Genesee River, and has a blighting influence on the Plymouth-Exchange neighborhood.

Downtown Rome BOA, Oneida County

BOA includes 991 parcels on 513 acres, including 92 brownfields and 272 underutilized properties. Significant uncertainty regarding environmental quality severely hindered redevelopment & investment, causing decline in property values and population loss. Historically the industrial and manufacturing center of Oneida County, the BOA is a critical step as Rome redefines itself as a city of viable industry, high quality neighborhoods, and accessible waterfronts.

City of Cohoes BOA, Albany County

The population peaked in 1910 at 24,709 and declined nearly 35% since, due to decline of manufacturing jobs, an exodus to the suburbs and the dislocation of housing due to major urban projects, including the construction of SR-787. The population loss has had significant adverse impacts on the city’s economy, including tax base, job & business development, & housing values. The BOA builds on 13 yrs of efforts, and focuses on transformation of the city into a unique destination within the Capital Region.

Lower Concourse BOA, Bronx

This South Bronx BOA is in the least affluent urban Congressional District in the US, with a median income of $20,451. It has the highest poverty rate in the US, at 37% and highest proportion of kids living below the poverty line at 50.3%.

Bradhurst BOA, Harlem

80% of population is at 60% AMI or lower. BOA is 85% African-American, 10% Latino, with 18% unemployment.

East New York BOA, Brooklyn

Very low-income (primarily 0-60% Area Median Income); majority Latino and African-American

Flushing River Waterfront BOA, Queens

The private market prior to BOA was moribund. Despite close proximity to Flushing’s thriving downtown core, the Flushing BOA was overwhelmingly characterized by underutilized properties and vacant lots.

Port Richmond BOA, Staten Island, NYC

Area has large low income & minority populations, struggling commercial street & residential area lacks transportation options. Industrial waterfront has history of env. degradation, cuts community from water.

West Brighton BOA, Staten Island

Mixed socioeconomic profile, though high poverty predominates. Very little private development has occurred in recent decades. An Environmental Justice Showcase Community.

Sunset Park BOA, Brooklyn

Nearly ½ of residents are foreign-born. Educational attainment falls behind the rest of Brooklyn and NYC overall, with 36% lacking a high school diploma. At $43,100, the median household income is $9,400 below that of NYC.

Jamaica Station Area BOA, Queens

Unemployment rate at 14.9%, almost 50% higher than Queens overall. Housing foreclosures have plagued community since 2008, driving down residential values thereby diminishing most common source of equity for business lending.

Wyandanch BOA, Long Island

High poverty rates & low household median income relative to rest of Long Island. Little to no private investment taking place.

ATTACHMENT #5Over 40 communities seeking to participate in the BOA program were turned away in October 2013 due to lack of funding. There are an estimated 70+ additional communities that are waiting to apply for BOA funds, pending a new appropriation.

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Applicants turned away in October 2013 due to lack of funds:

Senate District Assembly District

Allegany County IDA, Western NY 57 148

Bedford Stuyvesant, Brooklyn 25 56

Booneville, Oneida 47 118

Buffalo Urban Renewal Agency, Erie 63 141

Canton, St. Lawrence 48 116

Canton, St. Lawrence 48 116

Community League of the Heights, NYC 31 72

Family Services Network of NY, NYC 18 53

Farmingdale, Long Island 6 15

Fifth Avenue Committee, Brooklyn (Sunset Park) 25 51

Fifth Avenue Committee, Brooklyn (Atlantic Ave) 25 57

Fort Plain, Montgomery 46 111

Franklinville, Cattaraugus 57 148

Freeport Community Development, Long Island 8 19

Genesee/Finger Lakes Regional Planning 59 147

Greater Glens Falls LDC, Warren 45 114

Greene County IDA - Industrial Area 46 102

Greene County IDA – Coxsackie 46 102

Greenwich, Washington 45 113

Heart of Brooklyn Cultural Institutions, NYC 18 57

Horseheads, Chemung 58 124

Hudson, Columbia 43 106

Hudson Valley Patterns for Progress 40 106

Long Beach, Nassau County, Long Island 9 20

Menands, Albany 44 110

Myrtle Ave Commercial Revitalization & Dev., NYC 25 50

Nassau County, Long Island 1 - 5 12 – 22

Newtown Creek Alliance, Brooklyn 12, 18 377, 50, 53

NYC Parks and Recreation, NYC

Rochester 55 137

Rome, Oneida 47 119

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Schodack, Rensselaer 43 107

Seneca County

Southern Tier Regional Planning

Spring Valley 38 97

Stillwater, Saratoga 43 113

Stony Point 39 99

Suffolk County 1-5 1-12

Troy, Rensselaer 44 108

Utica, Oneida 47 119

Wellsville, Allegany 57 148

Whitehall, Washington 45 114

Using a BOA grant, the NYC Mayor’s Office is creating 12 new BOAs, including 6 in areas heavily impacted by Hurricane Sandy. Without a fresh BOA appropriation, there will be no funding for any of these BOAs to proceed:

Potential BOA study Area

Pop (2010Census)

Predominant racial groups PovertyRate

Area Median Income

Unemploy-ment rate

Potential priority strategic sites

Farmers Blvd, Qns 48,593 Black non-hispanic (89%) 10.2% 5

Harlem Gateway 64,444 Black non-hispanic (38%) Hispanic - 29% 26% $43,709 9.3% 7Cromwell-Jerome, Bx 42,958 Hispanic (68%) Black non-hispanic - 8% 36% $29,172 14% 5Zerega, Bronx 125,101 Hispanic (53%) Black non-hispanic - 36% 19% $52,028 9.2% 8Red Hook, Bklyn 10,228 Hispanic (43%) Black non-hispanic - 22% 40% $49,396 21% 13

Partial list of communities waiting to apply for the BOA Program in NYC

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ATTACHMENT #6

List of Report Contributors and Participants* at NPCR’s March 4, 2014 Roundtable

While this report was informed by the comments and discussion among the participants at NPCR’s Roundtable, the conclusions and recommendations presented herein are solely those of NPCR.

Rachel Ataman, Hydro Tech Environmental, Corp.William Balter, Wilder Balter Partners, Inc.Ryan Baxter, REBNYPhil Bousquet, Bousquet Holstein, PLLCGary Bowitch, Bowitch & Coffey, LLCAlana Carroll, Integral ConsultingMatthew Carroll, Tenen EnvironmentalOliver Chase, Hirschen Singer & Epstein LLPShaminder Chawla, NYC OERDenise D’Ambrosio, Phillips Nizer LLPDale Desnoyers, Allen & Desnoyers LLPWayne De Wald, The Fane OrganizationDaria Fane, The Fane OrganizationAssistant Commissioner Sean Fitzgerald, NYS Homes and Community RenewalArnie Fleming, Fleming-Lee Shue, Inc.Assistant Commissioner John Gearrity, NYC HPDStephanie Green, West Side Federation for Senior and Supportive Housing, Inc. (WSFSSH)Kevin Healy, Bryan Cave LLPPeter Helseth, Fleming-Lee Shue, Inc.Jelaine Hendrickson, Harlem Congregations for Community Improvement, Inc.Barry Hersh, New York UniversityLee Ilan, NYC Mayor’s Office of Environmental RemediationJeff Jones, New Partners for Community Revitalization, Inc.Jody Kass, New Partners for Community Revitalization, Inc.Ken Kamlet, Hinman, Howard & Kattell, LLPJessica Katz, NYC HPDDebra Kenyon, L & M Development PartnersAlan Knauf, Knauf Shaw LLPChristine Leas, Sive, Paget & Riesel P.C.Jolene Lozewski, HRP Associates, Inc.Adam Lubinsky, WXY architecture + urban designKevin McCarty, Integral EngineeringLucille L. McEwen, Esq., Executive Director, Manhattan Valley Development CorporationKevin McGuinness, Fleming-Lee Shue, Inc.Mark McIntyre, NYC OERJulia Martin, Bousquet Holstein PLLCMary Manto, Tenen EnvironmentalPaul Maus, ReInvestTell Metzger, L & M Development PartnersHannah Moore, NYC OER

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Katherine Nadeau, Environmental Advocates of New YorkSusan Neuman, Greewich Environmental Underwriting Management, LLCJane O’Connell, NYS DECShachi Pandey, Urban MatrixNicholas Roberts, Flushing Willets Point Corona Local Development CorporationJoel Rogers, Impact Environmental Closures, Inc.Gary Rozmus, GEI Consultants, Inc.Robert Schick, NYS Department of Environmental ConservationLarry Schnapf, Schnapf LawDeborah Shapiro, AKRFLinda Shaw, Knauf Shaw LLCDarren Suarez, NYS Business CouncilJulie Tighe, NYS Department of Environmental ConservationJimTripp, Environmental Defense FundDan Walsh, NYC Office of Environmental RemediationVal Washington, Allen & Desnoyers LLPEric Weinstock, CA Rich Consultants, Inc.Jim Wendling, Wilder Balter Partners, Inc.Richard Werber, Foresight ConsultingAaron Werner, NYC HPDLynnWright, Edwards Wildman Palmer LLPAllen Zerkin, New York University Wagner School

*This is the list of people who registered for the Roundtable, attended the event, or otherwise contributed suggestions to the report.

For additional information, contact: Jody Kass Executive Director New Partners for Community Revitalization 151 West 30th Street, 11th Floor New York, NY 10001 www.npcr.net 917-923-3785 - cell 516-482-5542

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ATTACHMENT #7

About NPCR

New Partners for Community Revitalization (NPCR) is a 501(c)(3) nonprofit organization dedicated to the renewal of low- and moderate-income urban and downtown neighborhoods and communities of color, through brownfield redevelopment policy and program initiatives. NPCR was founded in 2001 by Jody Kass, now President and Executive Director, and by Mathy Stanislaus, now Assistant Administrator of the USEPA Office of Solid Waste and Emergency Response.

NPCR is a leading advocate for policies that support the cleanup, redevelopment and revitalization of brownfield sites. NPCR was instrumental in the conceptualization and creation of the Brownfield Opportunity Areas (BOA) program and has helped secure funding and grant awards for BOA communities. In 2002 NPCR called for the creation of a centralized brownfields response to NYC’s brownfield problems, and ultimately helped get legislation passed that institutionalized the NYC Office of Environmental Remediation.

NPCR works to engage the diverse constituencies involved in revitalization projects and fosters beneficial relationships between developers, public officials, community organizations and environmental justice organizations. Community-supported brownfield redevelopment projects create new jobs, new housing, open spaces and a better quality of life for all community members.

Recent NPCR Reports (available at www.npcr.net )

June 2013: MANUFACTURING REVITALIZATION: White House "Investing in Manufacturing Communities Partnership” May 2013: Reform on the Horizon: Stakeholder Collaboration to Extend & Maximize the Value of NY's Brownfield Tax Credits June 2012: Brownfields Dilemma: The Impending Sunset of NY’s Brownfield Tax Credit November 2011: Accelerating Economic Development: The Area-Wide Approach of the BOA Program June 2011: The BOA Program: Smart Investment Laying the Groundwork for Economic Development January 2011: Smart Growth Outlook 2011: Challenges and Opportunities in Brownfields, Area-wide Planning &

Implementation May 2010: Update: Excerpt from NPCR’s White Paper on Using Public Dollars for Brownfield Site Assessment March 2010: Fixing the NYS Brownfield Tax Credits November 2009: Addressing the Risk: Making Environmental Insurance Available for Brownfield Sites in New York City

This report would not be possible without the philanthropic support from our past and present foundation funders:

Alpern Family Foundation HSBC Bank USA, NABooth Ferris Foundation Independence Community FoundationBrooklyn Community Foundation Mertz Gilmore FoundationCitigroup Foundation Mizuho USA Foundation, Inc.Deutsche Bank Foundation Rockefeller Brothers FundFord Foundation Surdna FoundationGarfield Foundation The New York Community TrustHorace and Amy Hadegorn Long Island Fund

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