Largest Mixed-Use Tourism Development in New York State
Client: Private Mega-Mall Developer
Facility: Destiny USA
Issues: Brownfield Cleanup and Tax Credits, PILOT agreements and economic development tax credits, condemnation of lease rights, construction loan litigations
We continue to serve as lead counsel to one of the largest developers in the Northeast on the single largest international tourist destination ever proposed for New York State. Destiny USA is a proposed 5± million square foot, $6+ billion, IDA mixed use development project in Syracuse, New York on the shore of Onondaga Lake. It presents several complex and novel legal issues, including the following:
- In its early stages of development, project construction was halted due to hazardous waste and gasoline under the site, and the existence of Kaneenda, an ancient Indian fishing village on the only pre-colonial Iroquois site on Onondaga Lake. Our attorneys helped resolve the associated environmental and historic preservation issues, clearing the way for project construction.
- The project entailed significant cleanup of multiple brownfields on the Onondaga Lake shoreline, and involved complex public and private financing mechanisms. Our attorneys created a project structure that layers various existing available economic development programs to leverage the financing and economic viability of the project. These layers included various NYS tax credits through Empire Zones and Qualified Empire Zone Enterprises (QEZEs), the Brownfield Cleanup Program, and use of tax-exempt Empowerment Zone and Green Bonds issued by the Syracuse City IDA. We successfully litigated against the City of Syracuse, compelling it to enter into a first-of-its-kind PILOT agreement.
- We also successfully guided the IDA through multiple and extensive condemnation procedures and environmental impact analyses pursuant to the requirements of the Eminent Domain Procedure Law and SEQRA, including the successful defense of multiple SEQRA/condemnation challenges in litigation. We successfully defended against tenant claims regarding the condemnation of individual lease rights in an operating shopping center.
- We successfully brought a challenge in the New York State Supreme and Appellate Courts to NYSDEC’s denial of the developer’s application for inclusion in the State’s Brownfields Tax Credit Program. We successfully forced NYSDEC to accept a 150± acre parcel of land into the Brownfield Cleanup Program (estimated worth to client of more than $500 million), and obtained a preliminary injunction forcing a construction lender to make the agreed upon project loan advances.
Statewide Wireless Emergency Network
Client: State Government
Facility: Wireless Emergency Services Communications Network
Issue: Complex Statewide Environmental Review
Results: This project involved the establishment of a statewide wireless network to provide a secure, interoperable, emergency communications system for federal, state and local entities. The generic phase of the project involved a single, expansive SEQRA review process with a wide range of environmental and community impact issues. The second phase involved site-specific wireless site placements at a large number of specific project sites, with supplemental environmental impact review. The issues pertaining to the specific proposed sites typically centered on the potential visual and aesthetic impact of the proposed wireless antenna and related equipment.
The generic environmental review process included coordination of 16 statewide public meetings related to scoping for the Draft Generic Environmental Impact Statement (DGEIS). An aggressive schedule was also set for 16 hearings on the DGEIS. The development of an Impact Statement that identified the potential impacts and alternatives of the project and was also sufficiently flexible to accommodate the array of different environmental settings throughout the state was critical to efficient implementation of the network. The DGEIS also established criteria to determine when the preparation of site-specific supplemental impact statements was necessary.
The number of potential sites for the network could require as many as 1,200 separate antenna sites to meet the project goal of 97 percent coverage. The environmental review process was designed to address the environmental impacts, including cumulative impacts reasonably anticipated with respect to these potential sites.
Local Waterfront Revitalization
Client: Local Government
Facility: Oneida Lake Shoreline
Issue: Obtain funding to facilitate expansion of waterfront park
Result: The Firm identified as available and pursued a grant from the NYS Office of Parks and Recreation to assist the Town and Village in implementing the revitalization of a currently underutilized area to be more attractive to residents and tourists, leading to greater use of the River/Canal green space and will provide improved connectivity to the adjoining Main Street commercial corridor. This is expected to foster private-sector investment, redevelopment, and eventual transformation of the area into a vibrant and economically sustainable neighborhood. The project was awarded $275,000 in grant money from the State. The project included land acquisition, along with aesthetic, safety and access improvements, including the construction of Americans with Disabilities Act (ADA) accessible walkways and fishing areas, sidewalks, curbs, parking, a multi-use pavilion with restrooms, landscaping-green space, pedestrian scale lighting, and improved boat dockage facilities. The project is strategically located on the Erie Canal System and lies on the western edge of Oneida Lake, along what was historically a very important trading route from the Great Lakes to Albany with historic trading posts, sawmills, tanneries, brickyards, and fisheries in the area. Oneida Lake and the Oneida River were also important resources to several North American Indian Tribes.
Greenfield 1050 MW Cogeneration Project
Client: International Cogeneration Developer
Facility: 1050 MW gas fired, steam-electric cogeneration plant
Principal Issues: Permitting of a greenfield 1050 MW cogeneration plant, Environmental Impact Statement, Air Contamination Source Construction Permits, Army Corps of Engineers Wetlands Permits
Summary: The Firm served as counsel for the “greenfield” development of a 1050 megawatt (nominal) gas fired, steam-electric cogeneration plant. The project site consisted of 260 acres of which 51 acres were scattered wetland, presenting a significant design and permitting challenge. The project used more than 6 million gallons of water per day from Lake Ontario and had a waste water stream of approximately 1 million gallons per day.
GSH&S worked with the project sponsor and its prime technical consultant during a dynamic period of state regulation between expiration of New York State’s Article VIII permitting system and before implementation of successor system under Article X of the Public Service Law. Permitting was accomplished in one year in spite of opposition from Consolidated Edison, one of the largest regulated utilities in the Northeast, and the New York Power Authority.
The computerized, proprietary, regulatory system model developed by GSH&S was integrated with the client’s overall project and construction schedule to incorporate financial, contractual, permitting, environmental review and land use considerations with those relating to facility design, construction and startup.
County-Wide Water Supply
Client: County Government
Facility: Private Water Supply System
Principal Issues: Adequacy of Potable Water Supply Water Rates Project
Summary: The Firm represented county government as an intervenor in the NYSPSC rate case for a private utility that supplies potable water to 90% of the County’s 280,000 residents. Although the utility’s filing with PSC sought to increase water rates, the Firm used the rate case as a forum to address county concerns over the adequacy of water supply. The Firm made the utility’s failure to build sufficient water supply facilities one of the principal issues in the rate case. Through negotiation of a rate case settlement, the Firm achieved commitments from the utility to increase peak day water supply capacity and average daily water supply capacity by specified amounts within specified time periods extending out to 2015. To fulfill these commitments, the utility identified more than a dozen short and medium term supply facility projects to build.
In addition, the Firm negotiated a utility commitment to build a $100 million long term water supply facility on a specified construction schedule with an in-service date in 2015. The Firm also negotiated a system of performance payments that will be returned to water customers if the utility fails to achieve any of its supply increase or construction milestone commitments. The settlement agreement provides for up to $750,000 per year in such performance payments.
These water supply volume increase and supply facility construction commitments are unique among regulated water utilities in the State of New York. It is also the first time a regulated New York water utility will pay for failure to meet water supply or water facility construction commitments. The negotiation also resulted in an average increase in water rates seven percent less than those requested by the utility. Largely as a result of the Firm’s influence in the 6 party settlement negotiations, the settlement provides for an increase in water rates for the County’s largest employer that is 40% less than the rates proposed by the State Department of Public Service staff.
Greenfield Power Plant Construction
Client: County Government
Facility: 1100 MW Gas Turbine Power Plant
Principal Issues: Endangered Species, Water Supply, Air Emissions
Result: The Firm represented county government as a municipal intervenor in the New York State Public Service Law Article X certification and Department of Environmental Conservation (DEC) permitting processes for the greenfield development of a 1100 megawatt, gas turbine power plant. The plant included 4 gas-fired combustion turbines, 4 heat recovery steam generators, 4 steam turbine generators, a zero liquid discharge wastewater system, and a dry cooling system. The site included the habitat of the timber rattlesnake, a State-listed, threatened species, and several other species of special concern.
We represented the County’s interest in assuring the environmental compatibility of the plant, located within the viewshed of important visual resources, on the site of threatened species habitat and in a region where adequacy of water supply is a critical issue. GSH&S provided representation of the County on air pollution, water supply, wildlife and visual impacts through the joint Article X and DEC permit adjudicatory hearing process, in which the County raised cutting edge issues on fine particulate matter (PM2.5), health and environmental effects and fundamental questions concerning the delegation of federal authority to DEC for the issuance of federal Prevention of Significant Deterioration (PSD) air permits.
Issues relating to plant decommissioning were settled without litigation. The decommissioning settlement provisions were adopted by the Department of Public Service as the standard for major electric generating facilities authorized under Article X of the NYS Public Service Law.
Acid Rain Litigation
Client: Power Station Operator
Facility: Coal and Oil Fired Boilers
Issue: Validity of New York State’s Acid Rain Control Program and Sulfur Dioxide and Nitrogen Oxides Budget Emission Trading Regulations
Result: A challenge brought by our firm to the Department’s regulations establishing budget trading programs for power plant emissions of sulfur dioxide and nitrogen oxides resulted in those regulations being declared invalid. The decision turned on the Department’s failure to complete the rulemaking process in a timely manner and to properly extend the time for completion. The Department estimated that the acid rain regulations would have caused a 5% increase in wholesale power rates statewide.