At least for the past few years, Mr. Solow intended to get credits through the state’s Brownfield Cleanup Program, which gives developers who build on contaminated sites tax credits for both a set portion of their cleanup costs and a set portion of the total costs of the development. The program, first passed into law in 2003, had no cap on the benefits to developers, thereby allowing multibillion-dollar developments to potentially qualify for payouts of hundreds of millions of dollars in state funds. (The State Legislature revised the program last year, installing a cap of $35 million in benefits, but Mr. Solow would be grandfathered into the old rules.)
Mr. Solow indeed stands to gain substantially, as the DEC has estimated he would qualify for at least $250 million, based on his filings, if he emerges victorious from the legal battles, according to a DEC official.
The DEC, which said during the Pataki administration that Mr. Solow’s development would qualify for the program, has contended during the Spitzer and Paterson administrations that development on the site, one of the largest undeveloped tracts of private land in Manhattan, would have happened without the incentives.
“Remediation was substantially complete, it was fully required by other binding obligations, and the redevelopment was moving forward irrespective of the BCP,” the DEC said in court papers. A DEC spokesman declined to comment further due to the ongoing litigation.
But Mr. Solow’s lawyers said that the DEC was adding a new provision not in the law, claiming the site was eligible for the program regardless of whether development would have occurred.
In October, Justice Lewis Bart Stone agreed, ruling the DEC’s rejection of the development was “in violation of law by adding a condition not found in or authorized by the statute.”
The Solow case comes as the state is appealing similar rulings for a mixed-use project near Rochester and for a planned mega-mall–resort near Syracuse, DestiNY USA, where developer Pyramid Companies plans a development of between $2 billion and $6 billion.
David Freeman, an attorney with Paul Hastings who co-chairs a New York State Bar Association committee dealing with environmental policy and who said he is not involved in these developments, said the DEC “has the weaker of the arguments” in the appeal.
“The issue is, in DEC’s mind, whether these projects would have been done anyway,” he said, “but that’s not a standard that’s actually in the legislation, that’s a standard cooked up by DEC.”
An attorney for Mr. Solow, Daniel Riesel, was more blunt about the developer’s prospects.
“I don’t believe the state has a snowball’s chance in hell because they really tried to change the plain language of the statute,” he said.
For now, though, the site goes without construction, a point that has frustrated community members and elected officials.
“We were looking for open public space, but not in the form of giant craters,” Councilman Dan Garodnick said via e-mail.