Land Use ControlsLocal Government Management of LUCs

Presented by

J. Michael Sowinski, JD, EIT

DPRA Incorporated

February 02, 2005

Presentation Overview

The LUC Creation Process

From LUC Recording to Actual Protection

The Local Government Permit Application` Review Process

Local Government LUC Management Systems

Local Government LUC Issues and Anecdotes

State-Local LUC Management Role

LUC Selection and Design

Environmental Covenant

NFA w/Conditions

Consent Order/Agreement

Identify Residual Risk

Design Means to Reduce Risk

Select Type of LUC

Craft Terms of LUC

Deed Notice

Approve LUC Use State/Federal Environmental Agency

Draft and Sign LUC

Federal Database

Local Property Record Office

State Database

Local Ordinance

The LUC Creation Process

-State “Cap Cop”-PRP-Trust Inspections

Direct LUC Inspection

-EPA 5 Yr. Review

-Due Diligence(AAI)-Title Insurance-LUC Alert Services

Indirect LUC Monitoring

Property Transaction

Land Use

LUC Stewardship

Making a LUC Into a Cleanup Remedy

-Development Permits-Building Permits-One Call-LUC Alert Services

-Local Government?LUC

LUCs & the Development Process

Building Permit(ministerial)

RemediateSite and

Choose IC

Development (Use) Permit(discretionary)

Review & analysis

Conditions ofApproval

Construction

Construction

?

Source: Ignacio Dayrit, City of Emeryville, Ca

LUC

Red Flag Systems

Cities Update Existing Property Record Software

Rochester, NY – GIS Based

Phoenix, AZ – GIS Based

Oakland, Ca – DOS Based

During Permit Application, Flag Triggers Paper Review of Environmental Files

City RP Sites

11 Sites (100 Parcels) Flagged

- Planners

- Building Permit

No Public Access

Flag Triggers Environmental Review

Detailed “Developer Guidance Documents”

Permit Denials (about 5application per year require EMP/EHS efforts)

Rochester, NY Phoenix, AZ

State DEURs Sites

No Legal Obligation Upon City

30 DEUR Sites Flagged

- Planners

- Building Permit

Public Access Only At City Office

Flag Triggers Environmental Office Review

City Review State Files for Threshold Determination (2 Cases)

State NFA w/Conditions Sites

Internal System Flags Sites

- Building Permit

No Public Access

Flag Triggers CUPA Review

CUPA Reviews Permit Application

Oakland, Ca

Emeryville, CA

OSIRIS – A Contaminated Property Redevelopment Service

Developed by the Redevelopment Department

GIS and Web Based & Accessible to Public

Initial Funding Through Brownfield Grant to provide a Internal “Desktop GIS” for the Planners

osiris features

The user can choose among several background options.

Choose among environmental, planning, real estate, public art.

Ownership and planning information.

Choose from several search and site selection functions.

Source: Ignacio Dayrit, City of Emeryville, Ca

The user can search parcels based on address, parcel number or owner name.

OSIRIS displays key property information, including ICs, Risk Management Plan summaries and links to other sites, like GeoTracker.

Borings and wells on the parcel are highlighted.

osiris features

Source: Ignacio Dayrit, City of Emeryville, Ca

The OSS displays sample data from soil borings and groundwater wells.

osiris features

Source: Ignacio Dayrit, City of Emeryville, Ca

OSIRIS highlights parcels within a certain distance with institutional controls.

osiris features

Links to PDFs, Geotracker and/or DTSC websites.

Source: Ignacio Dayrit, City of Emeryville, Ca

Sample PDF of an IC

osiris features

Source: Ignacio Dayrit, City of Emeryville, Ca

OSIRIS prints out a report of parcels with ICs

osiris features

The report includes links to PDFs of ICs and links to DTSC and Geotracker websites

Source: Ignacio Dayrit, City of Emeryville, Ca

Brownfield Grants Spur Area-Wide GIS Systems

National City, California

108 Parcels Brownfield Grant Area

ASTM Phase I Search Radii Parcel Boundaries,

APN, and Real Estate Information

Recognized Environmental Conditions

City LUC Management Anecdotes & Issues

Palo Alto

Red flag System is OK

Don’t ask the City to do Affirmative Monitoring

Los Angeles

Does IC Knowledge Carry with it an Obligation

Legal

Political

California Redevelopment Association

Keep the Environmental Regulators Out of Subsequent Transactions (Compare to Colorado vs. Arizona).

City LUC Management Anecdotes & Issues

Emeryville Development Permitting Tool, Not a “Red Flag”

State Agency Relies on OSIRIS as an IC Monitoring Tool

DTSC Has Required RPs to Upload Their Information into OSIRIS

Emeryville Charges for That - $500.

OSIRIS has Cost about 200K

National City Motivated to Spur Redevelopment

Brownfield GIS as a Tool for Developers, for Public Participation, and for IC Approval.

The Colorado LUCIP Statute Imposes Clear State and Local Government Duties. LUCIP Provides Implementing Details

LUC Tracking – State

Permitting Must Check LUC Database

New York Environmental Easement Statute (ECL 71-3601) ECL Section 71-3607 entitled “Coordination with Local Governments” State Must Notify Local Government of Environmental Easements Local Government Must Compare Permit Applications Against List Cities Beginning to Negotiate Details with State

Arizona DEUR (SB 1243) No Rights or Obligations Upon the Local Government ADEQ/Cities Left to Work Out DEUR Stewardship

Michigan Covenant vs. Local Ordinance Pre-Approval of Local Ordinance Required

California AB 389 Local Government Must Review Response Actions

State-City Role Identification

Other “Institutions”Seismic Zone Protection

Purpose: Protect Public From Earthquake-Related Hazards. Discourage/Regulate Development in Seismic Zones.

Definition: Seismic Mapping Guidelines

Enforceable Rules: Mapping Required by the Seismic Hazards Mapping Act. Duty to Disclose Seismic Zone to Buyers.

Inter-Government Cooperation: Cities and Counties Must Consult the Map Prior to Project Approval.

Other “Institutions”Flood Plain Building Restrictions

FEMA Administers the Flood Insurance Program

FEMA Provides Flood Plain Maps to Local Jurisdictions

Only Properties Within “Floodplain Management Ordinance”Areas Are Eligible for Insurance

FEMA Sets Minimum Flood Protection Requirements for Local Ordinances

FEMA Audits Local Government Ordiances

Environmental Covenant Stewardship – Model Statute?

State Environmental Agency Must Identify all Environmental Covenants on Web-Based System

Owners of Existing Environmental Covenant Sites Have a Duty to Disclose the Covenant to any Buyer

City May Not Approve Any Permit Affecting Land w/o a Signed Statement from Applicant Attesting that the Applicant Reviewed the State Covenant List.

If the Development Impacts An Environmental Covenant Property, Applicant to Provide Sufficient Information Showing:

Project Compliance with LUCs

Measures to Assurance Future Compliance