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Destiny USA Dev. v. New York State Dep't of Envtl. Conservation

ELR Citation: 38 ELR 20157
Nos. No. 08-1015, (N.Y. Sup. Ct., 06/10/2008)

A New York court held that the state environmental agency arbitrarily and capriciously denied a developer's application to include in the state brownfield cleanup program certain parcels of contaminated land that it plans to convert into a mega-mall and resort center. Admission into the program gives a developer significant tax credits, upon completion of remediation, and limits the liability of a developer who uses the program to invest its own funds to effectuate remediation of brownfield contamination. The agency adopted "guidance factors" to determine eligibility into the program. Using those factors, it decided that the parcels at issue were not eligible for the program, and the developer appealed. The court held that the guidance factors are far from "explanatory and interpretive" and chided the agency for crossing into a realm of policy and legislation. The legislative history of the statute, and the clear language of the statute itself, show that the statute is to be liberally applied to brownfields throughout the state that satisfy the barest of requirements. In deciding to adopt the guidance factors, the agency made itself a fiscal watchdog without legislative authority and rewrote the statute, the effect of which was to "not only dull, but to emasculate the clear intent of the statute, by administrative agency fiat." And by denying the developer's application, the agency violated the Equal Protection Clause of the New York State Constitution and the Fourteenth Amendment of the U.S. Constitution.