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New York City Will Make It Easier to Remove "E" Designations From Properties Identified As Such In the Zoning Maps

Every once in a while, government agencies actually make things easier or more efficient for the general public. In the case of contaminated properties, New York City is helping potential property developers. Recently, the New York City Department of Environmental Protection (DEP) and the Office of Environmental Remediation (OER) adopted amendments to the rules addressing the removal of "E"-designations on zoning maps for affected properties.

First, some background information is required: properties containing an "E"-designation on a NYC zoning map are intended to give notice to potential purchasers or developers that certain environmental requirements must be met before the NYC Department of Buildings will issue Work Permits for construction projects or major renovations. These environmental requirements relate to potential concerns due to hazardous materials, air emission and/or high levels of noise at the property. The "E"-designations are designed to ensure that before Work Permits are issued, developers and prospective owners commit to addressing any potential environmentally issues.

These amendments are good news for developers because they provide more flexibility in determining when the "E-designation can be lifted. Specifically, the amendments allow OER to approve final cleanups at properties without site management plans so long as the proposed cleanup achieves "a level of remediation that does not rely on institutional or engineering controls." "Institutional controls" consist of non-engineered administrative or legal controls, such as deed restriction or zoning restriction, intended to protect human health and the environment. "Engineering controls," on the other hand, consist of a variety of constructed physical barriers or systems the minimize, reduce or prevent environmental hazards.

"E"-designations can also be removed by the Department of City Planning after receiving a letter of "no further action" from OER with respect to the potential hazards at the site. To establish greater consistency, OER, which was already issuing these "no further action" notices, can now itself remove E-designations from properties that have been cleaned up without reliance on engineering (technical) or institutional (administrative) controls.

The amendments also allow for an E-designation to be removed for noise and air quality concerns if the "no further action" notice from OER details that the environmental requirements for noise and air quality have been completed. The rule specifies that when "a development project has been built out to its full development potential according to zoning, and installation reports demonstrate that air and noise requirements have been satisfied" then the E-designation for noise and/or air quality can be removed from the lot.

The NYC Mayor's Office of Environmental Remediation operates programs to revitalize vacant lots around NYC. Since 2014, OER has completed environmental remediation and encouraged the redevelopment of over 400 lots. Affected properties are remediated in accordance with state environmental regulations and allow for cleaner and safer neighborhoods. The NYC Voluntary Cleanup Program is the only program of its kind in the nation where a municipality runs the cleanup efforts.

Click here to review the amended DEP Rule ยง 24-08.

Call the attorneys of Periconi, LLC at (212) 213-5500 if you are interested in developing a contaminated or E-designated property in New York City, or would like to learn more about New York City's E-designation program.

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