The Polanco Redevelopment Act By: Richard G. Opper (619) 231-5858 [email protected].

OPPER &

VARCO LLP

THE ENVIRONMENTAL

LAW GROUP

The Polanco Redevelopment The Polanco Redevelopment ActAct

By:By:

Richard G. OpperRichard G. Opper

(619) 231-5858(619) 231-5858

[email protected]@envirolawyer.comm

Opper & Varco LLPOpper & Varco LLP

Contaminated Property:Contaminated Property:

Is there a Doctrine in the House?Is there a Doctrine in the House?


Guiding Principle:Guiding Principle:

““The owner of condemned property is The owner of condemned property is entitled to be put in as good as entitled to be put in as good as position pecuniarily as if his property position pecuniarily as if his property had not been taken”had not been taken”

- BUT -- BUT -


Guiding Principle:Guiding Principle:

However, an owner has no property right However, an owner has no property right to pollute. Under nuisance law, “the to pollute. Under nuisance law, “the right to make any use of the property right to make any use of the property that would create a hazard . . . was that would create a hazard . . . was excluded from title at the onset.”excluded from title at the onset.”

US v. Virginia Electric & Power Co.US v. Virginia Electric & Power Co.

365 US 624, 633 (1961)365 US 624, 633 (1961)



““A survey of approaches to assessing A survey of approaches to assessing damages to contaminated private damages to contaminated private property”property”

By: Kenneth F. McCallionBy: Kenneth F. McCallion

Fordham Environmental Law Report - Fordham Environmental Law Report - 19921992



““Society no longer has the luxury of Society no longer has the luxury of permitting individuals and permitting individuals and corporations to exploit land . . . corporations to exploit land . . . without being fully accountable for the without being fully accountable for the environmental degradation caused.”environmental degradation caused.”

3 Fordham Environmental Law Report - 125, 3 Fordham Environmental Law Report - 125, 126126


Nichols on Eminent Domain, Nichols on Eminent Domain, Matthew Bender, 1996Matthew Bender, 1996

The “Non-Intersection” of Eminent Domain The “Non-Intersection” of Eminent Domain and Condemnationand Condemnation

Dr. Gavin Erasmus “Dr. Gavin Erasmus “The Taking of The Taking of Environmentally Contaminated Property”Environmentally Contaminated Property”



A) All evidence of contamination A) All evidence of contamination should be excluded from the should be excluded from the valuation trialvaluation trial

B) “Just” compensation makes no B) “Just” compensation makes no offsetoffset



““Contamination is a separate matter Contamination is a separate matter and should be tried separately. and should be tried separately. [Therefore] . . . the submission here [Therefore] . . . the submission here is a “non-intersection”.is a “non-intersection”.

Nichols, Matthew BenderNichols, Matthew Bender

§ 13B.01§ 13B.01



If “just compensation” equals fair If “just compensation” equals fair market value - isn’t the question one market value - isn’t the question one of how the “market” values of how the “market” values contaminated property?contaminated property?


California Redevelopment:California Redevelopment:

Employs statutory solutionEmploys statutory solution

Polanco Redevelopment ActPolanco Redevelopment Act


Brief History:Brief History:

Proposed by San Diego Downtown Proposed by San Diego Downtown Development Agency (CCDC) in 1990Development Agency (CCDC) in 1990

Amended on several occasionsAmended on several occasions 1998 amendment at the request of 1998 amendment at the request of

California Redevelopment Association California Redevelopment Association (CRA)(CRA)

Legislated “sunset” removed; SB Legislated “sunset” removed; SB 1684 September 27, 20021684 September 27, 2002


Polanco Redevelopment ActPolanco Redevelopment Act

Health & Safety Code Health & Safety Code § 33459.1, et § 33459.1, et esq.esq.

Cost reimbursementCost reimbursement

Immunity from further state cleanup Immunity from further state cleanup demandsdemands


““An agency may take any actions that An agency may take any actions that the agency determines are the agency determines are necessary . . . Consistent with . . . necessary . . . Consistent with . . . Law . . . To remedy or remove . . . A Law . . . To remedy or remove . . . A release of hazardous substances . . . release of hazardous substances . . . Within a project area . . .”Within a project area . . .”

H&S H&S § 33459.1(a)§ 33459.1(a)


Applies federal CERCLA liability Applies federal CERCLA liability

framework to RDA Projectframework to RDA Project

Owners & operatorsOwners & operators Past owners or operatorsPast owners or operators ArrangersArrangers TransportersTransporters

“PRP”s (Potentially Responsible Parties)


How Does it Work:How Does it Work:

Authorizes RDA requests for Phase I Authorizes RDA requests for Phase I and Phase II environmental and Phase II environmental informationinformation

Authorizes reimbursement to RDA for Authorizes reimbursement to RDA for investigationsinvestigations

Authorizes RDA to send “60-day Authorizes RDA to send “60-day Notice” letter requiring to develop Notice” letter requiring to develop and approve a remedial action planand approve a remedial action plan


Whither?Whither?

City of Emeryville v. Elements City of Emeryville v. Elements Pigments, Inc. 2001 WL 964230 (N.D. Pigments, Inc. 2001 WL 964230 (N.D. Cal. 2001)Cal. 2001)

SB 1684SB 1684

San Diego RDA v. Salvation Army (Cal. San Diego RDA v. Salvation Army (Cal. Ct. App., 4th District. Oct. 21, 2002.)Ct. App., 4th District. Oct. 21, 2002.)


Salvation Army:Salvation Army:

What does “scope and standard of What does “scope and standard of liability under CERCLA” mean?liability under CERCLA” mean?

Must Agency comply with the Must Agency comply with the National Contingency Plan?National Contingency Plan?


CERCLA Elements:CERCLA Elements:

1)1) “Responsible Party”“Responsible Party”

2)2) At a “facility”At a “facility”

3)3) Where “release” of “hazardousWhere “release” of “hazardoussubstances” occurredsubstances” occurred

4)4) If the Government spent moneyIf the Government spent money

5)5) Not inconsistent with “NCP”Not inconsistent with “NCP”


Polanco Elements:Polanco Elements:

1)1) Site within redevelopment area Site within redevelopment area

2)2) “Release” of “hazardous substance” “Release” of “hazardous substance” occurredoccurred

3) 3) Defendant is “responsible party”Defendant is “responsible party”

- and -- and -


Polanco Elements:Polanco Elements:

4)4) 60 Day notice (required for remedial plan)60 Day notice (required for remedial plan)

5)5) No (satisfactory) responseNo (satisfactory) response

6)6) Clean-up implemented subject to Clean-up implemented subject to approved planapproved plan

7)7) Agency incurred costs to implement planAgency incurred costs to implement plan


Salvation ArmySalvation Army

““Scope and Standard” of CERCLAScope and Standard” of CERCLA

Liable (responsible) partiesLiable (responsible) parties

Judicial “CERCLA standards”Judicial “CERCLA standards”

Doesn’t include NCPDoesn’t include NCP



City had prejudgment possession,City had prejudgment possession,

Therefore Army not “owner”Therefore Army not “owner”

No. (No. (Fleet FactorsFleet Factors))



Army deserved new “60 day notice” for Army deserved new “60 day notice” for unknown release.unknown release.

No. One notice is all Act requires. (Joint No. One notice is all Act requires. (Joint and several liability)and several liability)



Army should not have Polanco “offset” Army should not have Polanco “offset” considered for purpose of determining considered for purpose of determining entitlement to litigation expenses.entitlement to litigation expenses.

No. Fair Market Value is not blind to No. Fair Market Value is not blind to contamination.contamination.



Expect to see more cities tackleExpect to see more cities tackletough brownfield sites!tough brownfield sites!

The Polanco Redevelopment Act By: Richard G. Opper (619) 231-5858 [email protected].

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