Connecticut Brownfields Update

W. Richard Smith, Jr.
Joey Lee Miranda
Robinson & Cole, LLP
Hartford, Connecticut

Prior to the 2000 legislative session, based on Connecticut case law, the costs of environmental remediation could not be considered in assessing the fair market value of property in any condemnation proceedings in Connecticut. During last year's legislative session, however, the Connecticut General Assembly passed Public Act 00-89, An Act Concerning Fair Market Value of Brownfields, which allows a referee who determines the fair market value of a piece of property that is taken by eminent domain, under a municipality's redevelopment authority, to take into account the environmental condition of the property and the required environmental remediation. Public Act 00-89 was limited by its terms to takings carried out under a municipality's redevelopment authority. This year, the Connecticut General Assembly passed Public Act 01-75, An Act Concerning Consideration of Environmental Remediation Costs, which, among other things, allows for the consideration of environmental remediation costs in assessing the fair market value of property in all condemnation proceedings. On June 6, 2001, Governor Rowland signed Public Act 01-75 into law.

The Connecticut General Assembly also passed Public Act 01-179, An Act Concerning Issuance of Bonds by the Connecticut Development Authority and Its Subsidiaries on Behalf of Municipalities for Information Technology and Remediation Projects. Public Act 01-179 authorizes the Connecticut Development Authority (CDA) to issue and administer bonds for the purpose of assisting any remediation project, upon a resolution of the legislative body in the municipality in which the remediation project will be located.

"Remediation project" is defined broadly in the statute as any project involving the development or redevelopment of real property within the State of Connecticut that a) has been subjected to a spill; b) is an "establishment," as defined in the Connecticut Transfer Act, Connecticut General Statutes ' 22a-134 et seq.; c) is a "facility," as defined in CERCLA, 42 U.S.C. 9601 et seq.; or d) is eligible to be treated as "polluted real property" or "contaminated real property," as those terms are defined in the Connecticut General Statutes, as long as the development or redevelopment is done in accordance with a remediation plan that meets all Department of Environmental Protection standards and requirements. "Remediation Project" also includes any project the CDA determines will add or support significant new economic activity or employment in the municipality or will otherwise materially contribute to the economic base of the State of Connecticut or the municipality and any project for which CDA assistance will be needed to attract necessary private investment.

No new projects can be approved under this program after June 30, 2005. Governor Rowland signed Public Act 01-179 into law on July 6, 2001.