The Oneida County Bar Association • New York   

Newsletters > 2009 Newsletters > March 2009

[Click Here for Full Issue in PDF] 

President’s Column

     I continue to urge you all to get involved with our Association. There are many opportunities to serve the membership, have fun with colleagues, and maintain the honor and dignity of our profession.  By getting involved you will make connections, maybe even friendships. Indeed, one thing I learned from the 2009 OCBA Memorial Service is that our deceased colleagues built many friendships with members of our Bar. I also learned from members present that they would have liked to have been better acquainted with those being memorialized. Some of the comments I heard included "I never knew that about him"; "I wished I would have known that about him"; "I wished I had taken the opportunity to talk more with him about that".  We still have an opportunity to get to know each other better, don't wait.  As an incentive, this year, if you choose to tell your colleagues something about yourself (which will be printed in the BAR NEWS) by completing and sending the form below your name will be entered into a drawing. One winner will be chosen monthly to receive a prize. You may also expand upon this idea by submitting a non-fictional account of a brief chapter of your life  in the courtroom.

     Family Court attorneys (like me) seem to know one another a little better than those practicing in other courts. Could it be the wait time? Sit in the Family Court lawyers room and you may hear more than expected about a colleagues life. I hear the "older" lawyers say that if we still had calendar call we would know each other better. Not having been around for the days of calendar call, I envision the experience of  waiting  in Family Court a kin to those days. Further, within the next few months Bar members will have an additional opportunity to commingle in the OCBA Lawyer's Lounge on the second floor of the County Courthouse in Utica. The space is located across the hall from the old library.   Check it out any time your there, and stay tune for updates. Meanwhile, I want to remind you the Board of Directors/Officers and the Committees are working hard to make improvements for the membership.   However, if issues aren't raised we cannot begin to address the problem. I urge you all to be a part of the solution by talking to the chairs of the committees or  any of the directors/officers so that together we can maintain the honor and dignity of our profession.

    Something my colleagues may not know about me is that I have a three- year old Yellow Lab, Lilleigh, (who is not unlike Marley). We enjoy going to the “dog bark” in Rome, and I love her.  -  Theresa M. Girouard.  

Oneida County Courthouse Attorneys’ Lounge

     The Oneida County Bar Association is raising funds to furnish the furnishings for the Attorneys’ Lounge on the 2nd Floor of the Oneida County Courthouse, Utica. The contributions and/or donations should be sent to the Bar Association payable to Oneida County Comptroller, Joseph Timpano, and the contribution will in that form be tax deductible.

     If attorneys are seeking to contribute specific dedicated items that would have a plaque on the same the costs are as follows: Tables - $2,061; 1 table - $687; End tables - 1 @ $403, both for $807; Wood side chairs - 18 chairs at $251 a chair; Lounge chairs - 4 chairs at $921 a chair.

     The expectation is that the Courthouse will be rededicated on November 20, 2009 which will be the 100th anniversary of its initial dedication and we hope to have the Attorneys’ Room fully furnished at that time.  

Bar Mourns the Loss of Attorney

     George B. Grow, (93) passed away on February 25, 2009 at Rome, N.Y.  He practiced law in Rome for over 65 years, initially as an associate of Michael J. Larkin, a former NYS Supreme Court Justice, and later as a partner with the late Children’s Court Judge Walter W. Abbott.  After the death of Mr. Abbott he practiced alone, then with his brother, John W. Grow and later as a founding partner of the firm of McMahon and Grow, retiring in 2008.  He was the first attorney for the Rome City School District and was instrumental in the formation of the district.

     George was born November 28, 1915, at Lorraine, N.Y., the son of William L. and Nellie B. Grow.  He married Doris Herrman on October 26, 1940 at the Zion Episcopal Church in Rome.  She passed away on October 31, 1998. 

     He graduated from Rome Free Academy in 1933, from St. Lawrence University with an B.A.. Degree in 1937, and received his law degree from Albany Law School, cum laude.  After his admission to the practice of law in 1940, he served as a Special Agent with the FBI from 1942-1946, returning to Rome after that service. 

     He was a director and attorney for the Farmer’s National Bank and Trust Company (now HSBC), a member of the Advisory Board of Marine Midland Bank Central (now HSBC) and a former director of Mid-State Abstract Corporation.  He is a past member of the Rome, Oneida County, New York, and American Bar Associations.  He is a former director of the Oneida County Bar Association. He was honored by the Oneida County Bar Association as a recipient of the coveted Hugh R. Jones Award.    

     He had been actively involved in many community organizations including Director and Past President of the Rome Area Chamber of Commerce, Director of Rome Industrial Development Corporation, Charter Member, Director and Vice President of the Oneida County Industrial Development Corporation (now EDGE), Trustee of the Hospital Review and Planning Counsel of Central New York, Director of Central New York Association of the Blind, member of the Board of Visitors of New York State School for Deaf, Director of Rome United Way, President of Rome Salvation Army Advisory Board, Chairman of the College Council, SUNY College of Technology, Director of the Association of College Council Members and SUNY Trustees and Member of the Stevens Kingsley Foundation (now part of The Rome Community Foundation).

     He was active in many Masonic organizations and served as Master of his Lodge and Potentate of Ziyara Shrine Temple in Utica, member of the Rome Elks Club, Rome Rotary Club, former Rome Club and First United Methodist Church of Rome.

     Immediate surviving family members include his son, David C. Grow, daughter, Linda G. Senesky, and brother, John W. Grow.  He is also survived by five grandchildren, seven great-grandchildren, one nephew, and four nieces (including Julie Grow Denton).

     In accordance with his wishes, a family funeral service was held with no calling hours.  Burial will be at Rome Cemetery.  In lieu of flowers, the family suggests a donation to The Rome Community Foundation, P.O. Box 609, Rome, NY 13442-0609, where a memorial fund in his honor has been established. 

Fourth Department Upholds DEC Denial of Brownfield Cleanup Program Application

In the Matter of Lighthouse Pointe Property Associates LLC, v. NYS Department of Environmental Conservation, et al., Appellate Division, Fourth Department, 2009 NY  Slip Op 00878 (Feb. 6, 2009)

     This article focuses on a area of environmental law the New York Brownfield Cleanup Program  which is the subject of much recent controversy and litigation.  

     For those unfamiliar with New York’s brownfield program, a little background will be helpful.  In 2003, the State enacted a comprehensive law to help spur development of  contaminated – “brownfield” – properties in New York.  The heart of the law was the creation of an entirely new brownfield cleanup and financing scheme known as the Brownfield Cleanup Program (BCP). The BCP allows a party (such as a developer) to remediate a brownfield site to cleanup standards which are tied to the anticipated future use of the site. In return, the developer receives certain liability protections and substantial, refundable tax credits based upon both the cost of the site cleanup as well as the cost for redeveloping the site. The BCP is overseen by the New York State Department of Environmental Conservation (DEC). To participate in the BCP,  a party must apply to the DEC for entry into the program. To determine eligibility into the BCP, DEC must first decide whether the contaminated site meets the statutory definition of a “brownfield.” Under the statute, a brownfield site is “any real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of a contaminant,” where contaminant is defined as hazardous waste or petroleum. 

     Unfortunately, the statute does not provide any direction to DEC as to what facts or evidence is needed to decide whether a site is so “complicated” by real or perceived contamination. Though DEC promulgated BCP implementing regulations, the regulations do not clarify this issue.  Needless to say, DEC’s decisions to reject applications for entry into the BCP based on its determination the subject site was not a “brownfield” has led to numerous lawsuits brought by parties denied entry.   

     The first case to be decided by an appellate level court is In the Matter of Lighthouse Pointe Property Associates LLC, v. NYS Department of Environmental Conservation, et al., Appellate Division, Fourth Department, 2009 NY Slip Op 00878 (Feb. 6, 2009). In this case, the Petitioner, Lighthouse Pointe Property Associates, LLC applied for entry into the BCP in order to cleanup and redevelop two contiguous contaminated sites in Rochester, New York. These properties had historically been used, among other things, as a municipal landfill and wastewater treatment plant.  Refuse, ash, slaw, sewage sludge, construction debris and other fill materials were deposited at the site.  Prior to applying to the DEC, Lighthouse Pointe investigated the environmental conditions of the site and found that contamination exceeded DEC’s soil and groundwater standards for several contaminants.  In particular, some of the contamination exceeded DEC’s own brownfield cleanup standards, the Soil Cleanup Objectives (SCOs), set forth in DEC’s brownfield cleanup regulations. 

     Nonetheless, DEC denied Lighthouse Pointe’s entry by DEC into the BCP program. Petitioner commenced an Article 78 proceeding against the DEC. The Supreme Court ruled in Petitioner’s favor holding that to DEC failed “to state the reasoning [it] employed in reaching" its decision that the SCO exceedances were minimal and thus would not complicate the redevelopment project. The Court concluded that, "[b]y failing to provide any rational basis for [its] determination that the development of [the parcels] would not, or could not, be complicated by the possible presence of even minimal levels of contaminants, the DEC has failed to demonstrate that [its] actions were anything but arbitrary and capricious."  Supreme Court ordered the DEC to admit Lighthouse Pointe into the BCP. DEC appealed.

     The Appellate Division, 4th Department, reversed and upheld DEC's denial of the application. The Court relied on the affidavit of a DEC engineer who opined that, despite the fact that there were exceedances of DEC’s own cleanup standards, that the "exceedances revealed by both historical and current sampling data were few in number, were limited in magnitude, were widely dispersed throughout the property, and did not indicate the need for remedial action." Stating that courts cannot “second-guess a reasoned agency determination,” the Appellate Division deferred to DEC and ruled that DEC's denial of Petitioner’s BCP application was not unsupported by the evidence and that DEC did not act in an arbitrary and capricious manner.

     Significantly, Judge Smith dissented in a detailed and well-reasoned opinion.  After examining the facts of the case, the statutory definition of a "brownfield site" and the DEC's brownfield guidance, Judge Smith strongly disagreed with the majority and concluded “that this case in fact presents a paradigm of sites that fall within the ambit of the BCP as defined by the statutes, and that the interpretation by the DEC of the BCP's enabling statutes to exclude the subject parcels is unreasonable.”  Pointedly noting that the DEC found this site not to a brownfield even though the contaminant levels exceeded the DEC’s own brownfield cleanup standards, the dissent stated that if these cleanup standards (the SCOs) are not the standard for determining whether a property is contaminated such that is would be a brownfield, then "there really is no standard at all."

     Rejecting the majority view, the dissent argued that that this was not a case where the Court must defer to DEC’s interpretation of the brownfield statute. Instead, Judge Smith found that that DEC “improperly interpreted the enabling statutes for the BCP” by “redacting” certain sites (i.e., solid waste disposal sites such as the Lighthouse Pointe site) from inclusion into the BCP, the DEC “improperly usurped legislative function.”  In sum, the dissent believed that DEC's determination to deny the application was unreasonable in light of the facts and was arbitrary and capricious due to the lack of standards.

     For practitioners representing clients applying for inclusion in the BCP, the majority opinion in his case is a disappointing one.  Moreover, the law on what is or is not a brownfield in New York is still very unsettled.  There are three very recent Supreme Court decisions which found DEC’s denial of petitioners’ entry into the BCP to be arbitrary and capricious.  See, Destiny USA Dev., LLC v. New York State Depart of Envtl. Conservation, 19 Misc 3d 1144[A], 2008 WL 2368085 (N.Y.Sup., Onondaga Cnty., 2008); East River Realty Co., LLC v. New York State Dept. of Environmental Conservation, 866 N.Y.S.2d 537 (N.Y.Sup., N.Y. Cnty., 2008); HLP Properties, LLC v. New York State Dept. of Environmental Conservation, 21 Misc.3d 658 (N.Y.Sup., N.Y. Cnty., 2008). Given this confusion, as well as the likelihood that the Lighthouse Pointe Petitioners will seek leave to appeal this decision to the Court of Appeals, advising clients on their prospects of gaining entry into the BCP will be difficult for quite some time to come. Submitted by Gary S. Bowitch, Esq.,


LAW DAY MAY 1, 2009

The Oneida County Bar Association’s Annual Law Day luncheon will be held on May 1, 2009 at 12:00 noon at the Radisson Hotel, Utica. The theme of this year’s Law Day Program is: THE INTERNET, CYBER CRIME AND EXPLOITED YOUTH: ADDRESSING NEW LEGAL AND SOCIAL RISKS.

Mr. Ed Suk will be our guest speaker. He is the director of the New York office of the National Center for Missing and Exploited Youth.

Our morning program will be conducted in the Oneida County Courthouse in Utica for the benefit of area high school students from Oneida and surrounding counties. The program will begin at 9:00 a.m. in the Hon. John P. Balio Ceremonial Courtroom of the Oneida County Courthouse, where a presentation by Mr. Suk, the Oneida County District Attorney’s Office, the Child Advocacy Center, the New York State Police, and other attorneys will take place. The students will work through various scenarios of internet crime against children and the challenges of prosecuting and defending cyber crimes, followed by a lecture/panel discussion.

The program will then proceed to the Radisson Hotel for a luncheon at 12:00 noon providing area high school students a valuable opportunity to interact with attorneys, judges and government leaders. Mr. Suk will present his talk.  There will also be a presentation of the Hugh R. Jones award.

We look forward to seeing you at the luncheon.

     DATE & TIME: Friday, May 1, 2009 at 12:00 noon
     EVENT:  Law Day Luncheon
     LOCATION:  Radisson Hotel-Utica Centre, 200 Genesee Street, Utica, NY
     COST:   $25.00 per person*

* The increase in cost of the luncheon will ensure that area high school students may attend free of charge.

Please send in your reservation using a copy of the form in the pdf version of this newsletter together with your check payable to Oneida County Bar Association, 258 Genesee Street, Suite 302, Utica, NY 13502. If you have any questions, please call the Bar Association office at 724-4901.

[Back to top of page]