Builders and Contractors Exchange
Weekly Bulletin: 22 Aug 2005
Voluntary Remediation: Development Impacted By Contaminated Land
By: Michael Sterling and Richard Crouch
It can be a public relations nightmare for many builders and developers. Given the fundamental maxim that most pristine land has already been developed, builders and developers are focusing more on less-than-ideal sites, such as former industrial locations, fill sites, and landfills. These sites can often be developed safely for various uses, including residential. However, if certain disclosures and remediation measures are not implemented in advance, you may face a public relations nightmare when residents first discover such information via press releases or when digging in the backyard. Builders and developers should implement mitigation measures and disclosures voluntarily, rather than through a local mandate or court-imposed order sparked by bad press and consequent public outcry.
Problems that arise in such projects often involve methane and contaminated soil. Currently, most localities have limited legal authority to reject a development, if the project is properly zoned and not in violation of a code provision or local ordinance. However, given recent events, many localities will be reevaluating their review process to ensure no developments are built without appropriate protective measures and disclosures. To the extent that state law does not delegate sufficient authority to localities to implement such measures, we can expect proposed legislation in the General Assembly.
Builders and developers should always thoroughly research the history of a site. If the site is contaminated, they may want to explore a DEQ voluntary remediation program, whereby you submit to a state-monitored clean-up process.
Most common procedures to be implemented when developing on or near contaminated land will involve the following: (i) mitigation measures, (ii) public disclosures/restrictions, and (iii) indemnifications/ disclaimers.
Mitigation Measures: These may include vapor barriers to prevent hazardous substances from penetrating structures and vents to properly divert hazardous substances away from structures. Easements may be necessary to allow for periodic inspection of such devices, and in some circumstances, homeowner's associations may be appropriate to assure that installed systems are maintained in the future
Disclosures: Builders and developers should make sure that residents are aware of the site's history by including appropriate information in the sales contracts, deeds, and/or leases for the property. Such documents should explicitly state that (i) any future uses of the property must be conducted in a manner that preserves the integrity of and does not disturb the mitigation measures that have been implemented and (ii) the site is subject to certain use restrictions, declarations, covenants and easements as applicable.
Indemnifications/Disclaimers: Builders and developers may also want to request subsequent buyers to sign disclaimers with respect to environmental matters, once they review the applicable disclosures.
It is critical not to underestimate the pitfalls that can be avoided by addressing these issues before you break ground by consulting with an attorney and engineer experienced in these matters. This will not only save you time, complications and money, but preserve your public image.
Questions?
If you have any questions about this article or any other related matters, please contact:
Michael Sterling
or
Richard Crouch
This article is meant to bring awareness to this topic and is not intended to be used as legal advice.