Brownfield designation fails: perceived garbage, no perceived contamination

On Tues. Dec. 5, 2017 commissioners made a bold move, denying the brownfield designation for the Hammock Ridge 104 unit garden style apartment development located on Omaha Circle sought by the property’s developer, the Housing Trust Group of Coconut Grove in Miami. HTG hired the Goldstein Environmental Law Firm to represent them in the matter with a long track record of coordinating brownfield designations.

The brownfield designation is an incentive for developers to take the risk of developing properties that are contaminated or just merely have the perception of contamination. Developers who obtain brownfield designations can then go through a process with the FDEP for site remediation and are eligible for state incentive monies.

From the county’s perspective though, it drops surrounding property values and lowers tax revenue.

During the last meeting, Chairman Wayne Dukes at one point thought they had no choice but to grant the designation, based on the loose definitions of “perceived contamination.” According to the statute, the municipality “shall” designate a property a brownfield if the property owner has sufficiently demonstrated that there is a perception of contamination.
However, Dukes came out of the gate stating he couldn’t approve it - even if there are “legal ramifications.”

Goldstein began,
“For the record in the event that litigation is required- we hope that it isn’t, the applicant very much enjoys being a part of this community and being involved in a project that will provide significant , new, meaningful, affordable housing for a number of families and for rehabilitating a site that had significant environmental issues.”

He quickly moved into what the ramifications maybe if the county chooses not to designate the property a brownfield.

“To the extent that the board elects not to comply with what we think are very clear statutory criteria and litigation is involved, we need to protect our legal rights which would include our right to economic damages that would result from the denial of the designation, which are quite significant.”

The five applicable statutory criteria are very general and are as follows:
Agreement to Redevelop the Brownfield Site
Economic Productivity- the development of the site must produce a certain number of jobs, but according to documentation, “the job creation requirement shall not apply to the rehabilitation and redevelopment of a brownfield site that will provide affordable housing.”
Consistency with Local Comprehensive Plan and Permittable Use under Local Land Development Regulations
Public Notice and Comment
Reasonable Financial Assurance

Goldstein said, “The statute is such that once the criteria is met, the process becomes mechanical because of the use of the word “shall” and the action of the board must be to approve the designation.

He emphasized that proof of perceived contamination has been submitted through various forms of documentation, affidavits, photographs and expert testimony.

He cited that over 266,000 acres of land have been given brownfield designations in Florida and of those 266,000 acres only 5300 are subject to a brownfield site rehabilitation agreement meaning actual contamination has only been documented at less than 2% of all acreage designated a brownfield in the state of Florida.

“It is not unusual for an application to be brought forward where actual contamination does not exist and the reason for that from a public policy perspective is that the threat of contamination is sufficient to create economic dysfunction in the marketplace and leave otherwise valuable land undeveloped and marginalized... ” said Goldstein.

Public comment from Pat Miketinac urged the commission to give Tallahassee a chance to remove the abusive perception language from the law.

Charles Greenwell said that despite expert testimony, not one “iota of proof” that there is contamination has been given as no soil or water samples have been done.

He also stated, “When you designate a brownfield site in a community, it does evidence a decline or degrade in the community. ”

Goldstein contended that there is no need to come before the commission with contamination data per the state statute. “The definition of brownfield area recognizes that some brownfield sites may not have any actual contamination,” he said.

“We spoke to the concept of perceived contamination in detail… Gentlemen, the law here is clear, the criteria are objective,” Goldstein affirmed.

After Chairman Dukes stated that he could not support it even if there are ramifications, other commissioners followed suit, not supporting the brownfield designation.

Commissioner Allocco said he was at first frustrated with the fact that the local government is the trigger for the brownfield designation as well as the word perceived. “And now I think it’s a blessing,” he declared.

“Nobody is going to want to pay full price or actual price for a home or piece of property around there once this designation is given. It will also decrease the tax revenue in those areas because there will be a perception that this is contaminated land.”

Getting to the crux of the matter, he said, if your client was confident that there was contamination, (in the refuse that was removed) they would have tested it and it would have been a slam dunk… You dug foundations, you constructed buildings, no contamination was found.”

Allocco continued, “Perception now comes to us. It’s not on your side anymore. The perception has to be on us to decide whether we believe this is a brownfield. Because we’re the trigger and yes you could sue us if you like.”

“Based on the fact that you didn’t have anything tested because you didn’t really believe anything was contaminated, you removed it, there were no hazardous material designations to any of those materials that were removed or you would have told us that already.”

Allocco concluded, “It is my perception then that there is no reason to perceive there is contamination to the soil or the property that you’re requesting this for.”

Commissioner Champion stated, “I agree with the chairman, if you came forward prior to starting this project and said look at all this trash on the property, look at the state of this land. I want to develop this and I want to bring in jobs and spend millions of dollars- I could understand that. But the project is well underway and based on what I’ve seen here, I don’t feel that they meet the criteria for a brownfield site because I don’t believe there’s any contamination and you’ve actually admitted that.”

Commissioner Nicholson asked since people dump garbage on undeveloped lots all over the county are all the undeveloped sites with garbage bags on them brownfield sites? Answering his own question he stated, “I don’t think so.”

“They’ve done absolutely nothing to show there are contaminants on the site. They’ve ignored it because they want us to “perceive” that there’s contaminants out there. I agree with Allocco- the perception has to be with the county commission because we’re the trigger.”

County Attorney Garth Coller summarized the boards findings. “Essentially what I’m hearing all of the Board members say is that it’s not there is a perception of contamination, the board members are saying there may be a perception that it is belittered- that there is garbage on the site, but there is no perception of contamination, which is more than mere garbage. The board is making a distinctive finding that contamination has not been proven that would have given the perception of contamination some weight. The mere fact that the property has had trash thrown on it does not rise to the level of contamination.”

Mr. Coller posed the following question to each commissioner. “If prior to the application have you perceived that either in your role as County Commissioner or as a listener to the community in general that this property was quote contaminated?”

All commissioners responded in the negative. “Based on the evidence given, you’ve come to the conclusion that there is perceived garbage, but no perceived contamination,” concluded Coller. Commissioners agreed that is the finding they made.

A motion to deny the application for the brownfield designation was passed unanimously.