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OPPER &
VARCO LLP
THE ENVIRONMENTAL
LAW GROUP
The Polanco Redevelopment The Polanco Redevelopment ActAct
By:By:
Richard G. OpperRichard G. Opper
(619) 231-5858(619) 231-5858
[email protected]@envirolawyer.comm
Opper & Varco LLPOpper & Varco LLP
Contaminated Property:Contaminated Property:
Is there a Doctrine in the House?Is there a Doctrine in the House?
Opper & Varco LLPOpper & Varco LLP
Guiding Principle:Guiding Principle:
““The owner of condemned property is The owner of condemned property is entitled to be put in as good as entitled to be put in as good as position pecuniarily as if his property position pecuniarily as if his property had not been taken”had not been taken”
- BUT -- BUT -
Opper & Varco LLPOpper & Varco LLP
Guiding Principle:Guiding Principle:
However, an owner has no property right However, an owner has no property right to pollute. Under nuisance law, “the to pollute. Under nuisance law, “the right to make any use of the property right to make any use of the property that would create a hazard . . . was that would create a hazard . . . was excluded from title at the onset.”excluded from title at the onset.”
US v. Virginia Electric & Power Co.US v. Virginia Electric & Power Co.
365 US 624, 633 (1961)365 US 624, 633 (1961)
Opper & Varco LLPOpper & Varco LLP
Contaminated Property:Contaminated Property:
““A survey of approaches to assessing A survey of approaches to assessing damages to contaminated private damages to contaminated private property”property”
By: Kenneth F. McCallionBy: Kenneth F. McCallion
Fordham Environmental Law Report - Fordham Environmental Law Report - 19921992
Opper & Varco LLPOpper & Varco LLP
Contaminated Property:Contaminated Property:
““Society no longer has the luxury of Society no longer has the luxury of permitting individuals and permitting individuals and corporations to exploit land . . . corporations to exploit land . . . without being fully accountable for the without being fully accountable for the environmental degradation caused.”environmental degradation caused.”
3 Fordham Environmental Law Report - 125, 3 Fordham Environmental Law Report - 125, 126126
Opper & Varco LLPOpper & Varco LLP
Nichols on Eminent Domain, Nichols on Eminent Domain, Matthew Bender, 1996Matthew Bender, 1996
The “Non-Intersection” of Eminent Domain The “Non-Intersection” of Eminent Domain and Condemnationand Condemnation
Dr. Gavin Erasmus “Dr. Gavin Erasmus “The Taking of The Taking of Environmentally Contaminated Property”Environmentally Contaminated Property”
Opper & Varco LLPOpper & Varco LLP
Contaminated Property:Contaminated Property:
A) All evidence of contamination A) All evidence of contamination should be excluded from the should be excluded from the valuation trialvaluation trial
B) “Just” compensation makes no B) “Just” compensation makes no offsetoffset
Opper & Varco LLPOpper & Varco LLP
Contaminated Property:Contaminated Property:
““Contamination is a separate matter Contamination is a separate matter and should be tried separately. and should be tried separately. [Therefore] . . . the submission here [Therefore] . . . the submission here is a “non-intersection”.is a “non-intersection”.
Nichols, Matthew BenderNichols, Matthew Bender
§ 13B.01§ 13B.01
Opper & Varco LLPOpper & Varco LLP
Contaminated Property:Contaminated Property:
If “just compensation” equals fair If “just compensation” equals fair market value - isn’t the question one market value - isn’t the question one of how the “market” values of how the “market” values contaminated property?contaminated property?
Opper & Varco LLPOpper & Varco LLP
California Redevelopment:California Redevelopment:
Employs statutory solutionEmploys statutory solution
Polanco Redevelopment ActPolanco Redevelopment Act
Opper & Varco LLPOpper & Varco LLP
Brief History:Brief History:
Proposed by San Diego Downtown Proposed by San Diego Downtown Development Agency (CCDC) in 1990Development Agency (CCDC) in 1990
Amended on several occasionsAmended on several occasions 1998 amendment at the request of 1998 amendment at the request of
California Redevelopment Association California Redevelopment Association (CRA)(CRA)
Legislated “sunset” removed; SB Legislated “sunset” removed; SB 1684 September 27, 20021684 September 27, 2002
Opper & Varco LLPOpper & Varco LLP
Polanco Redevelopment ActPolanco Redevelopment Act
Health & Safety Code Health & Safety Code § 33459.1, et § 33459.1, et esq.esq.
Cost reimbursementCost reimbursement
Immunity from further state cleanup Immunity from further state cleanup demandsdemands
Opper & Varco LLPOpper & Varco LLP
““An agency may take any actions that An agency may take any actions that the agency determines are the agency determines are necessary . . . Consistent with . . . necessary . . . Consistent with . . . Law . . . To remedy or remove . . . A Law . . . To remedy or remove . . . A release of hazardous substances . . . release of hazardous substances . . . Within a project area . . .”Within a project area . . .”
H&S H&S § 33459.1(a)§ 33459.1(a)
Opper & Varco LLPOpper & Varco LLP
Applies federal CERCLA liability Applies federal CERCLA liability
framework to RDA Projectframework to RDA Project
Owners & operatorsOwners & operators Past owners or operatorsPast owners or operators ArrangersArrangers TransportersTransporters
“PRP”s (Potentially Responsible Parties)
Opper & Varco LLPOpper & Varco LLP
How Does it Work:How Does it Work:
Authorizes RDA requests for Phase I Authorizes RDA requests for Phase I and Phase II environmental and Phase II environmental informationinformation
Authorizes reimbursement to RDA for Authorizes reimbursement to RDA for investigationsinvestigations
Authorizes RDA to send “60-day Authorizes RDA to send “60-day Notice” letter requiring to develop Notice” letter requiring to develop and approve a remedial action planand approve a remedial action plan
Opper & Varco LLPOpper & Varco LLP
Whither?Whither?
City of Emeryville v. Elements City of Emeryville v. Elements Pigments, Inc. 2001 WL 964230 (N.D. Pigments, Inc. 2001 WL 964230 (N.D. Cal. 2001)Cal. 2001)
SB 1684SB 1684
San Diego RDA v. Salvation Army (Cal. San Diego RDA v. Salvation Army (Cal. Ct. App., 4th District. Oct. 21, 2002.)Ct. App., 4th District. Oct. 21, 2002.)
Opper & Varco LLPOpper & Varco LLP
Salvation Army:Salvation Army:
What does “scope and standard of What does “scope and standard of liability under CERCLA” mean?liability under CERCLA” mean?
Must Agency comply with the Must Agency comply with the National Contingency Plan?National Contingency Plan?
Opper & Varco LLPOpper & Varco LLP
CERCLA Elements:CERCLA Elements:
1)1) “Responsible Party”“Responsible Party”
2)2) At a “facility”At a “facility”
3)3) Where “release” of “hazardousWhere “release” of “hazardoussubstances” occurredsubstances” occurred
4)4) If the Government spent moneyIf the Government spent money
5)5) Not inconsistent with “NCP”Not inconsistent with “NCP”
Opper & Varco LLPOpper & Varco LLP
Polanco Elements:Polanco Elements:
1)1) Site within redevelopment area Site within redevelopment area
2)2) “Release” of “hazardous substance” “Release” of “hazardous substance” occurredoccurred
3) 3) Defendant is “responsible party”Defendant is “responsible party”
- and -- and -
Opper & Varco LLPOpper & Varco LLP
Polanco Elements:Polanco Elements:
4)4) 60 Day notice (required for remedial plan)60 Day notice (required for remedial plan)
5)5) No (satisfactory) responseNo (satisfactory) response
6)6) Clean-up implemented subject to Clean-up implemented subject to approved planapproved plan
7)7) Agency incurred costs to implement planAgency incurred costs to implement plan
Opper & Varco LLPOpper & Varco LLP
Salvation ArmySalvation Army
““Scope and Standard” of CERCLAScope and Standard” of CERCLA
Liable (responsible) partiesLiable (responsible) parties
Judicial “CERCLA standards”Judicial “CERCLA standards”
Doesn’t include NCPDoesn’t include NCP
Opper & Varco LLPOpper & Varco LLP
Salvation Army:Salvation Army:
City had prejudgment possession,City had prejudgment possession,
Therefore Army not “owner”Therefore Army not “owner”
No. (No. (Fleet FactorsFleet Factors))
Opper & Varco LLPOpper & Varco LLP
Salvation Army:Salvation Army:
Army deserved new “60 day notice” for Army deserved new “60 day notice” for unknown release.unknown release.
No. One notice is all Act requires. (Joint No. One notice is all Act requires. (Joint and several liability)and several liability)
Opper & Varco LLPOpper & Varco LLP
Salvation Army:Salvation Army:
Army should not have Polanco “offset” Army should not have Polanco “offset” considered for purpose of determining considered for purpose of determining entitlement to litigation expenses.entitlement to litigation expenses.
No. Fair Market Value is not blind to No. Fair Market Value is not blind to contamination.contamination.
Opper & Varco LLPOpper & Varco LLP
Salvation Army:Salvation Army:
Expect to see more cities tackleExpect to see more cities tackletough brownfield sites!tough brownfield sites!