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Text of Brownfield Coalition of the Northeast (BCONE) Comments Regarding NYSDEC’S Revised Definition of “Underutilized” Sent to Mr. Michael Ryan of NYSDEC on April 7, 2016

11 Apr 2016 11:54 AM | Anonymous member (Administrator)

The Brownfield Coalition of the Northeast’s (BCONE) mission and objective is to provide education on the benefits of brownfield remediation and sustainable redevelopment and to work with member states and brownfield stakeholders in the northeast, including New York State and New York City, to facilitate brownfield cleanups within member states. BCONE members have extensive experience in the brownfield remediation and redevelopment process and include state regulatory agencies and brownfield practitioners in the fields of environmental remediation, land use consulting, real estate, law, land development, and green jobs training programs that supply well-trained, accredited, and certified entry-level technicians for a variety of brownfield and green energy jobs.

We welcome this opportunity to comment on the revised definition of "underutilized" as proposed by the New York State Department of Environmental Conservation (NYSDEC). As a 501 (c)(6) organization with members who are involved in the development of brownfield sites in New York City and New York State, BCONE appreciates the opportunity to comment on NYSDEC's proposal.

BCONE believes  the revised definition improves on  NYSDEC's earlier proposal, but is still restrictive and will serve to prevent many sites which are truly underutilized in any normal sense of the term, from qualifying for tangible property credits under the 2015 Brownfield Cleanup Act Amendments.

Steve Jaffe

Additional Information for BCONE Members on "Underutilized"

Here is a paper on the topic:

“Underutilized land is a cloudy and somewhat elusive concept, meaning different things to different people. For some, it is simply vacant land, a seemingly basic term until you scratch beneath the surface. Indeed, vacant land can be a multitude of things from beaches, wetlands, community gardens, parks, and farmland to parking lots, abandoned buildings, empty lots and inactive industrial sites, just to name a handful of possibilities. For others, the notion of underutilized real estate extends even further beyond vacant land to encompass all properties that can be put to a higher and better use, whether it is from a financial, community, social and/or economic standpoint. Underutilized land can be a parking lot that would better serve the community as a grocery store, a use that would reduce negative externalities to the community and/or a property that brings in more income to its owner. It is even more subjective and difficult to define

Real estate appraisal and development professionals fundamentally center on the financial concept of the “highest and best use” of a property as the use that maximizes its profit-making capacity. Highest and best use is “the legally permissible and physically possible use that generates the highest residual income to the property over a reasonable period of time.”  Hence, any real estate that is not the highest and best use qualifies as underutilized.

The planning profession looks not only to evaluate the general financial condition of the parcel itself, but also to the externalities imposed upon the neighborhood in determining the underutilization of parcels. Many of these impacts are difficult to quantify or standardize as the focus is beyond the property and may be subjective to the neighborhood. For example, just a few of the elements that planners look to evaluate may include a site’s sense of place, the perception of safety and economic well-being offered, the impact on the sense of community and fit within the existing urban context, all of which are very hard to assign consistent values to. Even some of the more quantitatively-oriented effects such as a parcel’s influence on neighboring property values, job creation and its economic multiplier effect can be quite challenging to figure.

GSA has their own definition – but it is very specific to GSA -- it defines underutilized as “an entire property or portion of a property that is used only at irregular periods or intermittently by the accountable agency or property that is being used for the agency’s current program purposes that can be satisfied with only a portion of the property.””

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Brownfield Coalition of the Northeast is a nonprofit organization 501(C)(3) and all gifts are tax deductible to the extent allowed by law.
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