Overview

Z&S represents a specialty real estate investment trust, EPR Properties, whose affiliate is the Master Developer for one of the most ambitious mixed-use redevelopment projects proposed in New York State in decades.  Together with its development partners, EPR is constructing a world-class comprehensive destination resort, known as Adelaar, on over 1,700 acres in the Catskills.  The approved Comprehensive Development Plan for this $1 billion Project includes a casino, family resort, indoor and outdoor waterpark, golf course, retail, hotels, movie theatres and conference centers, residential village, and conservancy areas.

The subject site was the only site in the Catskills region selected by the New York State Gaming Facility Location Board for a Gaming Facility License pursuant to the Upstate New York Gaming Economic Development Act.  Z&S worked with its client, its gaming partner, and a team of prominent planners, architects and attorneys, to prepare and submit a multifaceted response to the Gaming Facility Location Board.    Resorts World Catskills casino and hotel is scheduled to open in early 2018, and construction of the infrastructure necessary for this major economic revitalization project is nearly complete.

Challenges

The Adelaar Project has required extensive coordination between and among the master planning, technical, legal, and construction teams, as well as the host community, and Federal, State, County and Local Agencies.  One of the first challenges involved drafting and negotiating the documents that would govern the initial core development of the casino, waterpark, golf course, entertainment village and related infrastructure, as well as the orderly future development of the remainder of the resort property.  Despite conflicting interests on certain issues, the Master Developer and the Casino Developer worked cooperatively to establish procedures for the overall development, administration, maintenance, use, preservation and enjoyment of the entire 1,700 acre site, as well as design standards for the resort, and reciprocal easements and licenses that would apply to all parcel developers.

Securing financing for over $110 million in public infrastructure presented another unique challenge.  The financing structure involved the establishment of several Special Improvement Districts pursuant to Town Law, and repayment of the debt service by the property owners and operators within each District. The Town Special Improvement Districts levy and collect Special Assessments annually on the parcels within each Special Improvement District in an amount equal to the debt service and other service fees on the bonds, plus operation and maintenance expenses. Because the benefits to the development parcels varied based upon use, and because future development parcels would also benefit from the public infrastructure, a formula was created to determine a fair and reasonable methodology to allocate the Special Assessments among the various parcels. Z&S worked closely with the Town, and the Administrator selected by the LDC, to identify a rate and method of apportionment among the parcels within each Special Improvement District.

Results

• Secured the land use, subdivision, and other regulatory approvals necessary for the project to be ready for development, including the formation of Special Improvement Districts, to facilitate public financing for over $110 million in public infrastructure improvements.
• Successfully defended legal challenges to comprehensive SEQRA Findings, which involved coordination of expert testimony, and defense of the Town’s actions pursuant to local Zoning Code provisions.
• Assisted in the preparation of a comprehensive response to the New York State Gaming Facility Location Board for the award of a Gaming License, pursuant to the Upstate New York Gaming Economic Development Act.
• Served as Infrastructure Developer’s Counsel, and worked closely with the Sullivan County Infrastructure Local Development Corporation, the Town of Thompson, and investment firms in the issuance of approximately $110 million in municipal bond financing for the cost of sewer, water, lighting, drainage, road, and other public infrastructure necessary for the development of the Project.
• Negotiated PILOT Agreements, Master Agency Agreements, and Lease/Leaseback Agreements with the Sullivan County IDA to secure valuable sales tax exemptions for the Project.
• Drafted and negotiated complex agreements, which will govern development and use of the overall resort, including, Resort Development Agreements, Ground Leases, Option Agreements, Master Declaration of Covenants, Restrictions and Easements, Conservancy Agreements and Project Labor Agreements.

Overview

Zarin & Steinmetz serves as Special Counsel to the City of Glen Cove, the City of Glen Cove Planning Board, and the City of Glen Cove Industrial Development Agency (IDA) and Community Development Agency (CDA), in the City’s revitalization of approximately 56 acres of formerly contaminated waterfront properties, which have been blighted for years.  

The City is in a Public-Private Partnership with RXR Glen Isle Partners LLC, who seeks to build the ambitious mixed-use Waterfront Project known as Garvies Point.  The Project will include 860 dwellings, a 50,000 square-foot office building, and 25,000 square feet of retail space.  The Project will also include approximately 20 acres of open space and public recreation amenities, including a new esplanade along Glen Cove Creek, parks, playgrounds, and marinas.  The IDA and CDA own the land, and are in contract with the redeveloper to convey the site, subject to various closing conditions.  Z&S navigates the City through all of the various legal, technical, and practical aspects of the Waterfront Project.

Challenges

The success of the Waterfront Project has required, and will continue to demand, extensive coordination between the public-private partners, as well as Federal, State, County and Local Agencies, to ensure that the many interrelated parts of the overall Project advance and meet deadlines.  The Project involves, for example, land use review processes before the Planning Board, contract negotiations between the IDA/CDA and redeveloper, final approvals from EPA and DEC of the extensive environmental remediation performed to clean the former industrial sites, amendments to the City Zoning Code, and certain Project-related litigation.  

Another essential challenge of this Public-Private Partnership is to find creative ways to satisfy the sometimes differing interests or goals of the various stakeholders, which include the City, redeveloper, outside agencies, and the public.  While all the interested parties want the property cleaned and restored to active waterfront use, there can be different visions of the mix of uses, building layout, or other elements of the Project.  The outside agencies also have their own regulatory requirements that must be satisfied in order to obtain all final approvals.

Results

• Guided the Planning Board in processing and approving the redeveloper’s Special Use Permit Application for Planned Unit Development (“PUD”) Master Development Plan Approval, including all aspects of SEQRA.
• Represent the Planning Board during the technical PUD Site Plan and Subdivision reviews for the individual phases of the overall Project.
• Assisted the IDA/CDA in the complex negotiation and drafting of important amendments to the Land Disposition Agreement (“LDA”), and will continue to represent the IDA/CDA in further amending the LDA to reflect current conditions.
• Guided the City Council in adopting one of the first local Vested Rights laws in New York, protecting PUD Master Development Plan Approval against zoning and other local regulatory changes for 12 years, subject to public health and safety exceptions.
• Conducted a 5-day condemnation trial in State Court regarding the valuation of a former junkyard that is part of the Project site.  Obtained a favorable outcome at trial for the IDA, which culminated in a settlement with claimants.
• Coordinate with the City’s environmental consultants to implement remediation activities, and pursue final approvals from EPA and DEC.

Overview

Zarin & Steinmetz served as Special Counsel to the City of Newburgh, in connection with the City’s redevelopment of approximately 30 acres of land situated on the Hudson River. Approximately seven (7) acres of the City-owned waterfront area was designated by the United States Environmental Protection Agency (“EPA”) as a federal Superfund site.

EPA named the City, and several others, as potentially responsible parties (“PRPs”) under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). EPA initially sought to require the PRPs to perform the cleanup, the cost of which was estimated at over $30,000,000. Z&S guided the City through complex negotiations with the EPA and the other named PRPs, which resulted in a cash-out Consent Decree. Under the settlement, EPA undertook remediation of the Site and released the settling parties, including the City of Newburgh, from future liability.

Prior to the entry of the Consent Decree, Z&S also participated in mediation with the named PRPs. The mediation parties agreed to an allocation amongst themselves for the payment due to EPA. The City and certain other PRPs also identified a strategy whereby the PRPs would be reimbursed for costs paid to EPA under the Consent Decree.

This unique approach protected the City’s limited financial and other resources to the maximum extent practicable, and resulted in the expeditious cleanup of the Site, as well as reimbursement of a significant portion of the costs incurred by our client.

Challenges

An understanding of each party’s competing and common interests was essential to the global settlement facilitated by Z&S among the PRPs and EPA. Z&S served its client’s interests in prompt remediation of the Site, while limiting the City’s financial and legal exposure. At the same time, we protected our client from competing interests of other PRPs and EPA, and provided a compelling basis for EPA to exercise its enforcement discretion.

One of the initial challenges involved a realistic assessment of the City’s potential liability for the large “orphan share,” which EPA sought to impose on the named PRPs. We evaluated the City’s exposure to the United States and to other settling PRPs, who could potentially seek contribution from the City. We worked closely with our client to balance the legal requirements and risks against the City’s objectives and limited resources.

The success of the mediation was due, in part, to our vigilance in protecting our client’s interests and the practical guidance we provided throughout. For example, we provided well-documented analysis of the City’s limited ability to pay and its legal defenses, and had full command of the evidence in the record, which dated back to the 1970s, as it related both to the City and all of the other participating PRPs.

We also found a creative way to provide reimbursement to the City for a portion of it settlement payment. The City, along with certain other PRPs, pursued those parties that EPA had ignored, but who clearly had liability under CERCLA for response costs. To date, the City has recovered a significant percentage of the costs paid to EPA, at virtually no cost to the City.

Results

• Analyzed the strengths and weaknesses of the City’s potential defenses to EPA’s claim that the City was jointly and severally liable for over $30,000,000 in response costs. We assisted the City in balancing the strength of its defenses against the City’s goals to remediate the Site as quickly as possible, and the risk, uncertainty and complexity of CERCLA litigation.

• Working with other named PRPs, negotiated cash-out settlement with EPA. Under the Consent Decree, the PRPs would pay a percentage of the costs incurred by EPA to investigate and remediate the Site, and EPA would complete remediation of the Site and release the PRPs from future liability.

• Simultaneously participated in mediation to reach agreement with the other named PRPs on allocation of the amount payable to EPA. In addition, the City, along with certain other named PRPs formed a Joint Defense Group to identify and seek contribution from hundreds of other PRPs, which EPA did not target or pursue.

• The Joint Defense Group reached settlements with over one hundred and fifty (150) PRPs and was able to recoup a significant portion of the costs paid to EPA under the Consent Decree.

• Negotiated and recorded Declaration of Covenants and Restrictions and Environmental Easement with New York State Department of Environmental Conservation and EPA in accordance with the Consent Decree.

• Assisted City in preparing and obtaining EPA approval of Site Management Plan, which governs disturbance of the Site going forward.

Overview

Zarin & Steinmetz was retained to represent the owner of a former rock quarry and to secure all land use, zoning and environmental approvals in connection with re-purposing the property as a premiere residential development. Our developer client sought to maximize the value of this truly unique 118 acre parcel. While neighbors, as well as the local municipality, sought the termination of rock crushing and mining activities, obtaining vested rights for a residential subdivision presented numerous legal, environmental, logistical and public policy challenges. Zarin & Steinmetz also negotiated the sale of the development to a major national homebuilder and represented the client throughout the real estate transaction.

Challenges

• Project received Positive Declaration and underwent full environment review
• Addressing concerns of numerous residential neighbors and civic organizations
• Preserving substantial portions of the pre-existing quarry site
• Need to formulate and implement off-site traffic improvement measures as mitigation
• Lack of existing utility infrastructure, including public sewer system and municipal pump station

Results

• Secured Final Subdivision Plat approval for 32 single-family homes and 31 multi-family residential townhouse units in accordance with developer’s goals and objectives
• Utilized cluster subdivision techniques to maintain density while preserving 80 acres of open space
• Created and dedicated new public park with active recreational amenities
• Drafted required easements and covenants, formed homeowners association, assisted with filing of HOA prospectus
• Formed municipal sewer and drainage districts to facilitate utility installation and maintenance

Overview

Zarin & Steinmetz represents several national and regional providers of senior and assisted living facilities seeking to expand into the Westchester and greater Hudson Valley market. Demographic studies establish that the portion of the population aged 80+ in the region will increase by almost 30% by the year 2040. Accordingly, there is a significant demand for residential facilities that will permit this population to age near their families under the watchful eye of professional caregivers. Over the last decade, the senior living industry has developed a new residential model that emphasizes high quality active amenities along with traditional care.  Yet, most municipalities do not have zoning regulations in place to address this model, relying instead on regulations adopted decades ago regulating intuitional “nursing home” uses.

Z&S works with these providers to identify appropriate sites for developing new senior and assisted living facilities, as well as securing all necessary approvals to construct them. Typically, this includes drafting legislative text amendments to modify local zoning regulations. This involves performing zoning and environmental due diligence at the pre-contract stage, as well as serving as land use counsel leading the development team through the legislative, permitting and environmental review processes.

Challenges

The modern senior and assisted living model requires larger buildings and grounds to accommodate social amenities, such as outdoor and indoor recreational space, computer and reading rooms, which are offered along with dining and care services for those residents requiring assistance with daily activities. Many also provide specialized services for memory care patients dealing with early stages of Alzheimer’s disease. Local zoning controls governing bulk, density and use often do not permit sufficient development to accommodate these communities. The challenge is to craft proposed zoning text amendments which safely facilitate this level of development while preserving the local municipality’s ability to safeguard the character of the community.

Z&S engages the providers, their development teams, municipal officials and their staff, as well as local stake holders, to evaluate existing regulations and a community’s comprehensive planning goals to prepare proposed zoning text amendments that are tailored to permit the new use, but do not “open the door” for large-scale development in the municipality. This includes drafting specific siting criteria, setback and screening regulations designed to integrate the facility into a specific neighborhood. These proposed zoning text amendments are subjected to a rigorous public review required under the New York State Environmental Quality Review Act, as well as the New York State Town, Village and City Law. During this review, we ensure that the administrative record compiled establishes that the proposed zoning amendments, along with the overall project, are consistent with the municipality’s planning goals, and support the issuance of all necessary approvals.

Results

• Obtained approvals for a 92-unit Assisted Living and Memory Care Facility in Greenburgh, requiring zoning text amendments.
• Obtained a Negative Declaration under the State Environmental Quality Review Act in furtherance of a proposed 80+ Assisted Living/Memory Care Facility, requiring zoning text and zoning map amendments.
• Successfully performed due diligence on several potential sites in Westchester, Rockland and New York City for various Independent Living, Assisted Living and Memory Care developments.