USE RESTRICTIONS KEY TO RECLAIMING BROWNFIELDS BY KATHRYN H. SNIDER Black & Veatch Cost effective cleanups of urban industrial lands often place long term restrictions on the future use of properties. In the rush to revitalize underutilized urban industrial centers, some people have been concerned about whether future use restrictions may negatively impact land value, and whether such restrictions can actually be enforced in perpetuity. These concerns should be alleviated, however, by the understanding that the only tool which can bring any negotiable value to contaminated industrial lands is cleanup requiring use restrictions. These properties, called "brownfields," would otherwise remain vacant and abandoned. The basic legal tools used to enforce use restrictions have a strong historical track record, and are being enhanced with modern tracking tools. Also, current laws allow use restrictions to be lifted or modified after additional cleanup or negotiation. A key to brownfield redevelopment is allowing cleanup standards Signs warn visitors to Gasworks Park about the area's soil contaimination. (Photo BY JON SAVELLE) to be selected based on future use of the property. Uses which restrict exposure to contaminated dirt and groundwater should be granted less stringent cleanup levels than residential properties. To cost-effectively redevelop contaminated properties for industrial use, they need not be cleaned up to a level safe enough for young children to eat the dirt. Many use and ownership scenarios are a good fit for what the Department of Ecology calls "institutional controls," that is, deed restrictions or other tools for controlling future exposure to contaminated soils or groundwater. Publicly-owned properties, property clearly in industrial areas, properties managed and regulated by some sort of management entity, and properties in strictly controlled land use areas (utility or transportation corridors, regulated open space, etc.) are locations where an additional overlay of land use restrictions can be enforced easily. Institutional controls frequently used in brownfield cleanups include the following: restrictions on future use of property; restrictions on groundwater extraction and use; restrictions enforcing maintenance of protective cover systems (soil, pavement or multi-media caps); restrictions enforcing health and safety procedures to be used when penetrations are made below protective caps; and site security and access controls. Some people voice concerns about whether these use controls can remain permanently attached to the property. For high-level nuclear or biological waste containment facilities, pictorial "signage" has been installed with the The US Dept of Energy once considered using these symbols as a means to warn future generations, who may not speak English, of environmental hazards at the Hanford Site. intention of communicating the hazards of disturbance to individuals millions of years in the future, or even to interplanetary space travellers. Institutional controls placed on brownfield properties represent a very different set of objectives and audiences. Brownfield properties typically contain moderate levels of industrial contamination that is old and well weathered. Regulations do not allow extremely hazardous levels of contamination to remain on-site, only moderate levels which may cause an adverse risk to young children after a substantial period of ingestion. Deed restrictions The basic tool used for implementation of institutional controls is deed restriction. Deed restrictions tracked through paper records have been proven to be an effective tool for hundreds of years to enforce such things as mineral and water rights, easements for particular uses and restrictive covenants. These restrictions are very similar to the institutional controls used to control exposure to contamination. Currently, innovative computer technologies make searching or recalling deed restrictions much easier. Additional tracking tools used to communicate restrictions to future developers or potential purchasers are also being implemented in many communities through permit desk "flags," special zoning districts, GIS mapping and database attributes, and Public Development Authorities or similar organizations. In a few locations, institutional controls have been implemented on an area or district-wide basis rather than at the individual property level. Through an area-wide Consent Decree with Ecology, the city of Tacoma, assisted by Black & Veatch and Gordon Thomas Honeywell, negotiated non-potable aquifer status, optional area-specific cleanup standards tied to future use, and associated institutional controls for all public and private properties abutting the Thea Foss Waterway. The Duwamish Coalition is working hard toward a goal of negotiating non-potable aquifer status and generic remedies for the entire Duwamish industrial corridor. These types of area-wide designations could be negotiated more frequently to help owners of smaller parcels within a contamination zone redevelop their properties. They add certainty and consistency to the redevelopment process for potential purchasers, and save time and money in agency negotiations. A variety of tools such as zoning overlays or development corporations are available to implement area-wide controls. Ownership options Creative ownership options have also been used to meet the goals of use restrictions and protect potential purchasers. For a heavily contaminated brownfield redevelopment site adjacent to Baltimore Harbor, Black & Veatch helped design a future ownership scheme in which property lines are horizontal, with separate ownership of the contaminated subsurface soils and the surface development. For this site, the industrial owner responsible for cleanup retains ownership of the property below seven feet deep (the elevation of the top of a multi-media cap), and retains surface easements to access monitoring wells and groundwater treatment facilities. The City of Baltimore and other developers own outright and maintain the property above seven feet deep, including the surface developments (public streets, parks, offices and community facilities) and related utilities. Future use restrictions and institutional controls are key to redeveloping brownfields. The option to use restrictions and other institutional controls is critical. Without it, the cost of cleanup would prohibit reuse of urban industrial lands. These lands would continue to remain fallow and underused, with only conceptual value. More important, industrial landowners would continue to be bankrupted by the impossible demands of stringent cleanup. The primary behavior of landowners in our urban industrial districts would be avoidance -- which means deferring modernization of industrial processes and passing on redevelopment options. Such a scheme does nothing for environmental cleanup and allows ongoing contamination sources to remain unchecked. No one wants our zeal for "edible dirt" to actually prevent cleanup, but that is what it has done in the past. The result has been urban blight. Developers and landowners must be allowed to have choices. The "new" regulations allow these individuals, who know much more about real estate than environmental professionals, to make thoughtful choices about future land value and consider a variety of cleanup and deed restriction options in their plans for property redevelopment. More frequently than might be expected, developers choose to clean up properties to stringent residential levels to increase property value and/or future use options. The opportunity for choice is the key to reclaiming brownfields. These choices need not be permanent. If in the future more extensive cleanup is implemented to facilitate another use, deed restrictions can easily be removed. Similarly, if natural degradation of contaminants brings concentrations below more stringent cleanup levels, the restrictions could be lifted. If regulations are revised in the future to allow greater levels of contamination to remain on the site, the deed restrictions could be revised. The cleanup with use restrictions of brownfield properties clearly adds significant value to stagnant properties and existing businesses. It is a legitimate and welcomed choice. Concerns regarding its future effectiveness are unfounded. Kathryn Snider is a vice president at Black & Veatch in the Special Projects Corp.