Loading...
HomeMy WebLinkAboutrequest letterRECEI`.fl [ijTP T EC0110H1G 014 MY ! 2 PM 2: 46 Boca Raton Fort Lauderdale Jacksonville Miami Orlando Tallahassee Tampa West Palm Beach May 11, 2004 Mr. Craig Clevenger, P.G., Brownfields Coordinator Department of Economic Development City of Miami 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130 Akeriiian Senterfitt ATTORNEYS AT LAW One Southeast Third Avenue 28th Floor Miami, Florida 33131-1714 www.akerman.com 305 374 56001e1 305 374 5095 fax Michael R. Goldstein 305 982 5570 mgoldstein@akerman.com Re: Request to Initiate Brownfields Designation Process for Miami River Multifamily Brownfields Development Located at 1960 N.W. 27th Avenue, Miami, FL Dear Mr. Clevenger: We write today on behalf of the Aguaclara, Ltd. ("Aguaclara"), to formally request that the City of Miami initiate the brownfields designation process under Section 376.80(2), Florida Statutes, for the Aguaclara multifamily development (the "Aguaclara Development") located on property formerly operated for over twenty years as a pesticide storage and distribution facility on the historic Miami River. Due to the environmental legacy left at this site as a result of previous activities, the City's assistance in this regard will play an important role in ensuring economic revitalization of the subject property and removing a significant impediment to redevelopment in the greater Miami River community.\' During the due diligence process, Aguaclara determined that significant levels of soil and groundwater contamination exist at the subject property. Our environmental experts have provided us with several cleanup options, all of which are expensive, time-consuming, and complicated. The developers are now in the position of having to pay a premium to address 1By way of brief summary, when fully developed, the Aguaclara Development will consist of a twelve story rental building and a four story parking garage over approximately two acres fronting the north side of the Miami River. Pinnacle intends to spend over $23 million on the project. Affordable housing is an important component of the City's master redevelopment plan for the Miami River Corridor and will help ensure a diverse work force for professional and service oriented firms located in the City of Miami. ; M2105132;2 } Mr. Craig Clevenger, P.G. May 11, 2004 Page 2 these issues if they elect to close on the property and move forward, incurring costs and delays that would not be present at a "greenfield" or uncontaminated site. Moreover, Aguaclara's lenders and investors will have questions and concerns regarding the viability of the development and the vicarious liability they may incur by providing financing. For these reasons, a brownfields designation is critical to the success of the development and the environmental restoration and economic revitalization of the property. As you know, a brownfields designation affords numerous, invaluable regulatory and financial incentives that tend to level the playing field between. brownfield sites and greenfield sites. On the financial side relative to this development, the designation will provide a partial tax credit against cleanup costs and a sales tax exemption on certain building materials. On the regulatory side, the designation will provide the developers access to a streamlined environmental regulatory process, clarify the extent of their liability for pre-existing contamination, and provide an important level of liability comfort and protection to their lenders and investors. Needless to say, this litany of incentives is critical to a site confronted with serious environmental legacy issues such as this one and can allow a developer to proceed even in the face of serious cost and liability uncertainty and risk. For all of these reasons, Aguaclara is requesting that the City designate the subject property a brownfield area. The balance of the letter sets forth the justification for our request by discussing how the development satisfies or will shortly satisfy each and every criteria for designation established by Florida Brownfields Redevelopment Act (the "Act"). The Subject Property Satisfies the Definition of A "Brownfield Site" A "brownfield area" is "a contiguous area of one or more brownfield sites, some of which may not be contaminated, and which has been designated by a local government by resolution." Under the Act, brownfield sites are defined as "sites that are generally abandoned, idled, or underused industrial and commercial properties where expansion or redevelopment is complicated by actual or perceived environmental contamination."12 Accordingly, prior to proceeding to an analysis of whether the statutory criteria for designation of a brownfield area has been met, we make a showing of consistency with the definition of "brownfield site." Based on our research and analysis, we conclude that subject property meets the definition of a brownfield site. More specifically and as noted above, significant environmental assessment activities conducted by Aguaclara and DERM at the site have confirmed the release of hazardous substances to soil and groundwater in excess of state and local regulatory criteria. Soil sampling conducted by Aguaclara's environmental experts over the last several months has revealed the presence of organochlorine pesticides above residential, industrial, and leachability Soil Cleanup Target Levels as established by the Florida Administrative Code. Groundwater sampling conducted during this same time period has identified the presence of chlorinated 2 Fla. Stat. § 376.79(3). t M2I05132;21 Mr. Craig Clevenger, P.G. May 11, 2004 Page 3 pesticides and lead in groundwater above the Groundwater Cleanup Target Levels established by the Florida Administrative Code. This data has been submitted to the Miami -Dade County Department of Environmental Resources Management ("DERM") for review, analysis, and response. Provided that Aguaclara closes on the property, it will execute a Brownfield Site Rehabilitation Agreement with DERM and prepare and submit a Site Assessment Report and Remedial Action Plan to address any and all threats to human health and the environment. In the interim, however, the environmental impacts to soil and groundwater confirmed through laboratory analysis clearly demonstrate that the subject property meets the definition of a "brownfield site" as set forth in the Act. Compliance with Statutory Designation Criteria In that the site conditions at the subject property meet the statutory definition of a "brownfield site" under the Act, it is appropriate to further consider whether the development satisfies or will satisfy each of the five applicable designation criteria.13 Stated succinctly, once Aguaclara holds its scheduled public meeting to afford neighbors and nearby residents an opportunity to comment on the proposed rehabilitation and redevelopment of the property, it will have fully satisfied the applicable statutory and the subject property can be formally designated a brownfield area. In the following paragraphs, we examine each criterion in detail and conclude 3Florida Statutes § 376.80(2)(b) provides that local governments shall designate a brownfield area requested by an individual, partnership, or corporation if the following criteria are met: 1. A person who owns or controls a potential brownfield site is requesting the designation and has agreed to rehabilitate and redevelop the brownfield site; 2. The rehabilitation and redevelopment of the proposed brownfield site will result in economic productivity of the area, along with the creation of at least 10 new permanent jobs, whether full-time or part-time, which are not associated with the implementation of the rehabilitation agreement or an agreement, between the person responsible for site rehabilitation and the local government with jurisdiction, which contains terms for the redevelopment of the brownfield site or brownfield area; 3. The redevelopment of the proposed brownfield site is consistent with the local comprehensive plan and is a permittable use under the applicable local land development regulations; 4. Notice of the proposed rehabilitation of the brownfield area has been provided to neighbors and nearby residents of the proposed area to be designated, and the person proposing the area for designation has afforded to those receiving notice the opportunity for comments and suggestions about rehabilitation. Notice pursuant to this subsection must be made in a newspaper of general circulation in the area, at least 16 square inches in size, and the notice must be posted in the affected area; and 5. The person proposing the area for designation has provided reasonable assurance that he or she has sufficient financial resources to implement and complete the rehabilitation agreement and redevelopment plan. { M2105132;2 } Mr. Craig Clevenger, P.G. May 11, 2004 Page 4 that Aguaclara satisfies or will satisfy the applicable requirements of Section 376.80(2)(b), Florida Statutes. 1. Agreement to Rehabilitate and Redevelop the Brownfield Site. Florida Statutes § 376.80(2)(b)(1) provides that "[a] person who owns or controls a potential brownfield site is requesting the designation and has agreed to rehabilitate and redevelop the brownfield site." This criterion has three components, including that the person requesting the Brownfield designation (i) own or control the proposed brownfield site(s); (ii) has agreed to conduct site rehabilitation activities; and (iii) has a _greed to conduct redevelopment. Aguaclara satisfies each of these three elements. First, the undersigned represents that Aguaclara has entered into an agreement to purchase the subject property. Thus, as the contract purchaser of the property, Aguaclara is "[the] person who ... controls a potential brownfield site [or sites]. Second, provided that it closes on the pending Purchase Agreement, Aguaclara will enter into a brownfield site rehabilitation agreement with DERM to perform any required soil and groundwater remediation consistent with applicable environmental law. Third, Aguaclara has secured the City's approval of its Site Plan governing redevelopment of the site. Based upon the foregoing, Aguaclara has demonstrated that "[a] person who owns or controls a potential brownfield site is requesting the designation and has agreed to rehabilitate and redevelop the brownfield site" and thereby establishes the first criterion. 2. Economic Productivity. Florida Statutes § 376.80(2)(b)(2) provides that "[t]he rehabilitation and redevelopment of the proposed brownfield site will result in economic productivity of the area, along with the creation of at least 10 new permanent jobs, whether full-time or part-time, which are not associated with the implementation of the rehabilitation agreement or an agreement, between the person responsible for site rehabilitation and the local government with jurisdiction, which contains terms for the redevelopment of the brownfield site or brownfield area." Although the development of the subject property as a residential community will not create permanent jobs, it will result in significant economic productivity in the area in a number of respects by adding temporary construction jobs, by adding to the tax rolls, by facilitating further redevelopment in the immediate neighborhood, and by increasing the work force. To ensure that the development moves forward and is successful, the City has approved Aguaclara's Site Plan, which acts as an agreement containing the terms for redevelopment. Other instruments and covenants will also be executed between the developer and the city governing the terms of redevelopment of the subject property. Accordingly, Aguaclara satisfies the second criterion for designation. 3. Consistency with Local Comprehensive Plan and Permittable Use Under Local Land Development Regulations. Florida Statutes § 376.80(2)(b)(3) provides that "[t]he redevelopment of the proposed brownfield site is consistent with the local comprehensive plan and is a permittable use under the applicable local land development regulations." In early 2003, Aguaclara petitioned the City of Miami for a Special Exception to construct a residential (M2I05132;2 Mr. Craig Clevenger, P.G. May 11, 2004 Page 5 development at the subject property. The City of Miami Zoning Board approved the request on March 24, 2003. Accordingly, the proposed redevelopment and rehabilitation of the subject property is fully "consistent with the local comprehensive plan and is a permittable use under the applicable local land development regulations." 4. Public Notice and Comment. Florida Statutes § 376.80(2)(b)(4) provides that "[n]otice of the proposed rehabilitation of the brownfield area has been provided to neighbors and nearby residents of the proposed area to be designated, and the person proposing the area for designation has afforded to those receiving notice the opportunity for comments and suggestions about rehabilitation. Notice pursuant to this subsection must be made in a newspaper of general circulation in the area, at least 16 square inches in size, and the notice must be posted in the affected area." To satisfy these public notice and comment requirements, the developer is required to hold a public meeting concerning the proposed rehabilitation, provide notice to neighbors and nearby residents, and afford those attending the public meeting an opportunity for comments and suggestions about the proposed rehabilitation. Aguaclara has scheduled a public meeting for these purposes for Wednesday, May 19, 2004. Notice of the meeting will appear in the Miami Herald's local section and will also be posted at the subject property no later than Wednesday May 12, 2004. Once this occurs, Aguaclara will have satisfied the fourth criterion. 5. Reasonable Financial Assurance. Florida Statutes § 376.80(2)(b)(5) provides that "[t]he person proposing the area for designation has provided reasonable assurance that he or she has sufficient financial resources to implement and complete the rehabilitation agreement and redevelopment plan." Pinnacle Housing Group, an affiliate of Aguaclara, is one of the leading developers of affordable housing communities in Florida. To date, Pinnacle has raised over $175 million to successfully develop thirteen multifamily and town home communities throughout the State. Seven more communities are currently under development. Of that number, Pinnacle has developed six multifamily communities and three town home communities in Miami -Dade County. Pinnacle has also been active in Miami, having successfully completed three multifamily communities and one town home community. Based upon its successful financing and construction of quality residential developments throughout the State, Miami -Dade County and in the City of Miami, Pinnacle and Aguaclara combined have more than sufficient financial resources to implement and complete the rehabilitation and redevelopment of the subject property, thus satisfying the fifth criterion. Conclusion As this letter demonstrates, the subject property satisfies the definition of a "brownfield site" and, once the requisite meeting held to solicit comments and suggestions about rehabilitation, Aguaclara will comply with all of the applicable criteria as set forth in Florida's Brownfields Redevelopment Act for designation as a brownfield area. Therefore, we respectfully ask that your office favorably consider this request for designation and, following compliance with the public meeting requirement, bring this matter before the City Commission for approval of.a resolution formally designating the subject property a brownfield area. {M2105132;2) Mr. Craig Clevenger, P.G. May 11, 2004 Page6 We are happy to provide your office with any additional information that you may require to help you properly evaluate the issues discussed in this letter. In advance, thank you for your assistance and cooperation regarding this very important matter. Very truly yours, AKERMAN SENTERFITT �IAI► Michael . • ldstein /mrg cc: Aguaclara, Ltd. {M2105132;2