Environmental, Land Use and Zoning

Putting thoughtful and practical strategic plans into action is our primary objective. We help clients with all environmental aspects of their businesses, deals, and projects; we guide businesses through the maze of local, state and federal environmental regulations, zoning requirements, and cleanup obligations; and we work with our clients to protect them from environmental risk in the acquisition and sale of businesses and real property. We deliver practical, timely, and cost-effective counsel to turn plans into realities.

With two experienced environmental engineers turned lawyers on our team as well as three additional lawyers who practice exclusively in the area of environmental and land-use law, we bring decades of experience and extraordinary insight into addressing the environmental risks and issues which can impede business operations and growth.

We serve clients throughout New York state and across the United States. Our clients include corporations of all sizes and in a myriad of industries – from closely held companies to Fortune 100 multinationals – as well as commercial developers, municipalities, financial institutions, venture capital and specialized investment entities, utilities, colleges and universities, and individuals.

We have particular strength advising on:

  • Advising Upstate New York municipalities – As the Town Attorneys for several towns across Upstate New York, we understand the unique needs, challenges, and priorities of municipal clients. Whether the task is drafting new local laws, improving existing laws or zoning regulations, ensuring compliance with state requirements for municipal governance and operations, advising boards and local officials on procedural and substantive legal issues, or any other need, we bring a wealth of knowledge and experience to assist local governing, zoning, and planning boards and other municipal officials.
  • Brownfields site development – We have extensive experience buying, selling, financing and developing contaminated properties, and our team has assisted clients in restoring more than 100 brownfield sites to productive use. We bring comprehensive understanding of federal and state agency requirements, consent orders, enforcement criteria, brownfield cleanup agreements, and the technical, cleanup and regulatory requirements involved with remediating sites. On an almost daily basis, we are negotiating remedial investigation and feasibility studies, cleanup requirements, consent orders and compliance issues with both state and federal agencies as well as agreements between private parties addressing the roles and responsibilities between them to investigate and remediate impacted properties.
  • Controversial projects – We have extensive experience handling the unique needs of controversial projects, including partnering and information sharing with regulatory agencies, environmental groups, and neighborhood and community groups. We have also worked with media relations, public survey and other outside consultants to handle particularly sensitive projects.
  • Environmental impact reviews – We advise clients in the preparation and filing of applications for project approvals and permits, assist in the preparation of environmental impact statements and represent clients at hearings before municipal boards and administrative agencies. We have extensive experience in the permitting of large controversial projects such as retail and commercial properties and industrial and mining sites.
  • Government relations – We track proposed regulations and legislation and, when clients identify potential risks to their businesses, we work with them to engage regulators and legislators in dialogue to mitigate that risk.
  • Litigation – Our team has represented clients in a full range of environmental and land use litigation: defending economic development and land use approvals in state and federal courts; prosecuting or defending cost recovery litigation to recoup investigation and remediation costs for hazardous substance/waste and petroleum releases; resolving disputes with government agencies over liabilities associated with contaminated properties; negotiating with federal and state agencies the terms of consent orders for environmental cleanup or landfill closures, and representing clients at every stage of enforcement proceedings – from administrative hearings to civil or criminal litigation.
  • Petroleum and hazardous substance site remediation – Our Environmental, Land Use and Zoning team has overseen more than 150 hazardous substance site cleanups throughout New York state in cooperation with the NYSDEC, and we have successfully managed more than 250 petroleum spill and tank cleanups.
  • Regulatory Compliance, Permitting, and Enforcement - We advise clients with respect to compliance, permitting, and enforcement matters under a wide variety of federal and state regulatory programs, including RCRA, the Clean Air Act, the Clean Water Act, the Hazardous Materials Transportation Act,  TSCA, FIFRA, underground storage tank programs, solid waste management programs, and asbestos management programs, among others
  • Renewable energy -- Technology is transforming the energy industry, and renewables are increasingly at the forefront. Our experience covers virtually all aspects of renewable energy development, so we are uniquely positioned to understand the challenges these projects may face and how to overcome them. We have represented developers of commercial-scale solar, wind, and agricultural waste-to-energy installations, advised municipalities on the local regulation of renewable energy projects, and helped landowners protect their interests when hosting a project. This breadth and depth of experience creates advantages for our clients every step of the way.
  • Transactions and environmental issues – Providing efficient and strategic due diligence, we have managed environmental issues on all sides of thousands of deals, including real property sales as well as corporate acquisitions, sales, mergers and lending transactions – some in excess of several billion dollars. We have also handled unique transactions such as landfill developments and other complex real estate transactions.
  • Wetlands and wetlands permitting – We work with state and federal authorities to obtain wetlands approvals including projects with impact studies on jurisdictional wetlands as small as one acre and as large as more than 100 acres. We also have extensive technical, regulatory and litigation experience on wetlands issues. Our team assists clients with managing wetland issues during site development and when necessary obtaining state (NYSDEC) and federal (ACOE and USEPA) permits for large and small-scale projects.
  • Zoning – The HSE Environmental, Land Use and Zoning team assists developers seeking rezoning, variances, special use permits, subdivision approvals, site plans and other land use approvals, and we represent clients in administrative and judicial review of land use decisions. We also advise condemners and condemnees in eminent domain proceedings.

What we See on the Horizon

Contact our Environmental, Land Use and Zoning team for our latest insights about the following:

  • Strategic, efficient, and thoughtful environmental due diligence on deals of all sizes –  Our Environmental, Land Use and Zoning team has extensive, cutting edge experience with environmental due diligence on M&A and real estate deals of all sizes, on both the buy and sell side.  We quickly and efficiently identify environmental risks and then work with our clients to develop practical legal and business risk mitigation strategies to address the known and potential environmental risks.
  • Renewable energy and land use – As climate change and economic factors drive increased development of renewable energy sources, solar arrays and wind farms are multiplying. The HSE Environmental, Land Use and Zoning team has worked on all sides of such projects -- for the energy companies developing the projects, for property owners where the projects will be located, and for the local government bodies that regulate land use to address crucial questions about land use, zoning and approvals for these new facilities.  Our experience on all sides of these projects gives us a unique perspective that allows us to address potential issues proactively before they derail projects.
  • Land use aspects of telecommunications – Cellular towers and other telecommunications infrastructure are nothing new. But as the technology and the regulatory landscape change, our depth of experience advising both municipal clients and telecom providers about the land use and zoning aspects of new installations sets us apart. We’ve helped local governments successfully regulate the installation of everything from new towers to “small cell” equipment, and we’ve helped telecom providers secure the required municipal approvals, land use rights, and real property interests for the terrestrial components of their networks. This industry-specific expertise translates into more efficient and effective service and advocacy for our clients.

Practicality, Engineering Insights and Legal Prowess Converts a Longtime Industrial Park to a Vibrant Mixed-use Neighborhood in the City of Ithaca

Where we started:  L Enterprises LLC, a major regional real estate developer, sought help as it negotiated to purchase a 95-acre parcel located in both the Town and City of Ithaca, New York. L Enterprises is working to transform 821,000 square feet of vacant former industrial space into a 1.7 million square foot mixed use – “live, work, and play” – development with residential, office, commercial, retail, restaurant, warehouse and manufacturing uses. The property has been subject to a consent order between the property owner and New York State Department of Environmental Conservation (NYSDEC) to remediate the property but to a degree that allows reuse for industrial purposes only. Despite over 30 years of work by NYSDEC and the property owner, significant investigations were needed and remedial programs revised to allow for a more productive reuse of the property.

Our strategy:  The HSE Environmental, Land Use and Zoning team first negotiated a purchase agreement with the seller which makes the seller responsible for cleaning up the site to more aggressive cleanup standards to allow the proposed mixed use. Our team oversees the seller’s investigation and clean up to ensure it complies with the state’s standards and the negotiated agreement. In conjunction with the seller, we are also working with NYSDEC to revise its Record of Decision to allow for the mixed-use development.

While the remedial work progresses and consistent with placing a parcel impacted by many years of manufacturing back into productive reuse, the HSE team has worked with the client and its consultants to develop and present to the relevant municipal boards a redevelopment plan that utilizes many elements of sustainable design and adaptive reuse of much of the existing architecture, using Leadership in Energy and Environmental Design for Neighborhood Development (LEED ND) as a framework for such development. This approach benefits the community and assists with the various municipal boards’ buy-in, ultimately resulting in land use approvals which include rezoning into specialized development districts to meet various mixed-use design goals.

Toward that end, the HSE team assisted the client with the drafting of an environmental impact statement that was accepted and approved by the lead municipal agency. We also helped the client obtain several of the rezoning and preliminary site plan approvals for elements of the proposed development. Additional approvals will be sought after completion of NYSDEC’s revisions to the Record of Decision that incorporate the more strict cleanup standards.

The outcome: The redevelopment project will cleanup a contaminated property with a long industrial history while also serving as a regional model for innovative design and sustainable, adaptive reuse.


Thoughtful Collaboration and Savvy Use of Experts Provide Litigation Defense, Financial Support, and a Multi-Party Settlement

Where we started:  McGuire Family Properties, a privately held regional real estate development and management company, engaged the HSE Environmental, Land Use, and Zoning team when it was facing litigation from a neighboring property owner to recover  costs incurred for the cleanup of that entity’s property. The litigation was complicated by the fact that further investigation revealed a mixed plume of contamination with sources arguably existing on both properties and a complex hydrogeology.

Our strategy:  We involved the former owner and operator of our client’s property in the litigation and as a significant financial supporter of our efforts to complete a thorough investigation and remedial plan under the Brownfield Cleanup Program. We marshalled together the experts needed to develop both evidence for the defense of the cost recovery litigation and a cost-effective remedial plan for the property. This approach allowed both the remediation plan for our client’s property to be developed while defending the litigation and providing the client with significant financial support during the entire process.

The outcome: The litigation settled with a three-party agreement which culminated in a cost-effective plan to clean up both properties approved by the State.

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Disclaimer

This website presents only general information not intended as legal advice. Although we encourage calls, letters and emails from prospective clients, please keep in mind that merely contacting Harter Secrest & Emery LLP (HSE) does not establish an attorney-client relationship between us. Confidential information should not be sent to HSE until you have been notified in writing by HSE that a formal attorney-client relationship has been established. Information sent to us before then may not be treated as confidential by HSE or the court.

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