Penny Wise and Pound Foolish: Passing Up the Opportunity to De-Develop a Brownfield for Fear of the Unknown

Most of my posts about land use deal with issues at my own end of Pennsylvania, in the Lehigh Valley of eastern PA. But I feel compelled to write about a news article I saw earlier this week in an environmental news feed I subscribe to. The article was about a recent land use decision made in the western PA community of McCandless, located about a dozen miles north of Pittsburgh.

I had no prior knowledge about the piece of land in question, a roughly 33-acre parcel containing a shuttered movie theater surrounded by asphalt. So I googled the site and found a news story from last October about the original purchase deal that the non-profit Allegheny Land Trust worked out on behalf of the Town of McCandless (McCandless was originally a Township until they adopted a home-rule charter in 1975 and thus became known as a Town. It's one of only two official Towns in PA). The site is bordered to the south by Pine Creek, a tributary of the Allegheny River.  According to the Town Manager, the entire site in located within the creek's designated floodplain. That means that almost the entire 33 acres is impervious surface capping a 100-year floodplain. That's bad, because natural floodplains allow water to percolate into the soil. When undisturbed, they have lots of trees and other vegetation to help absorb flood waters. Yes, natural floodplains can help mitigate flood conditions, and this movie theater appears to have had a history of flooding. Many municipalities prohibit development in 100-year floodplains.  I don't know if McCandless has seen the light and updated their zoning ordinances to exclude construction on floodplains since this site was originally developed, but at least they were actively pursuing an opportunity to de-develop (I just made up that word) this property from an abandoned and completely impervious Brownfield into a green park that would help them manage stormwater and downstream flash flooding.

The outline in red is the 33-acre movie theater property in question in McCandless, PA. It's pretty clear that Pine Creek (highlighted in blue) was hijacked and redirected when Rt. 19 was built. It's also pretty clear that McCandless never gave much thought to prohibiting development on floodplains. The movie theater reportedly flooded up to the fifth row of seats (photo credit: Google Maps). 

But I guess this de-development was too good to be true. Because the story that I initially stumbled upon this week reported on McCandless's leaders getting a case of cold feet at the prospect of paying for additional soil testing to fully characterize the environmental condition of the site.  And I have to acknowledge that most lay people would likely get cold feet when doing the environmental due diligence necessary to consummate a major property acquisition like this one. But if I were a McCandless resident, I would hope that my elected leaders would have consulted with professionals to determine whether pulling the plug on this deal was the best way to allay their concerns, albeit the easiest way. Allow me to give you a very brief overview of environmental due diligence for real estate transactions, and then I'll let you decide if the Town Council jumped the gun.

As part of the purchase of any commercial or industrial property, an environmental site assessment (referred to as a Phase I assessment) would normally be conducted to determine whether there are any physical indications of potential contamination or any public records that might suggest historic operations that may have caused contamination. These sale agreements are usually contingent on the results of the Phase I. If a Phase I turns up any reasons for concern, the buyer generally has two choices: either walk away from the deal completely or perform a Phase II investigation (at the buyer's expense).  A Phase II typically involves collecting confirmatory samples of soil and/or groundwater from locations of concern.  If contamination above state cleanup standards is confirmed, the seller is usually liable for any cleanup costs if both parties want the deal to go through.  If the seller refuses to pay for remediation, the transaction usually dies right there. A good environmental attorney can usually craft a buyer/seller agreement that would become part of the agreement of sale and would lay out target cleanup standards and time schedules for remediation. Or the agreement could even document an agreed upon dollar figure to credit the buyer on the sale price in exchange for the buyer conducting all remediation and thereby absolving the seller of any future liability for the contamination that had been identified. Bottom line is that with two willing parties, a buyer/seller agreement can ensure that the site is cleaned up with no residual liability for the documented contamination for either the buyer or seller. This is a simplified explanation, but it is generally how Pennsylvania's Act 2 Land Recycling program works. In my personal and professional opinion, in Pennsylvania, there is no reason that a willing buyer and a willing seller should ever have a real estate deal collapse over the environmental condition of the subject property.

I don't know exactly what McCandless's Phase I turned up for this site, but I have one idea based on an aerial photo of the site from 1957. In the photo below, I outlined the approximate current property boundaries in red, and Pine Creek is approximately highlighted in blue. The round objects located on the property immediately east of the theater site appear to be large above-ground storage tanks. There are no obvious tanks on the theater site in this photo, but there appears to be a pond, which would have to be man-made based on the geology and topography in this area.  A Phase I would also include a chain of title search and a regulatory database search, both of which are outside of the scope of this blog post (which is now vying for the record of my longest post ever). Although the neighboring storage tanks are shown to have some sort of containment berms around them, containment berms are not foolproof; and it is not likely that these 1950s berms were constructed to current containment standards. If the tank shown to the immediate north of the northeast corner of the theater site had leaked and the berm was breached, the contaminant plume could have migrated to the theater property both over the ground surface and/or below the ground surface. Another question would be whether the former on-site pond was filled in with clean fill or if contaminated fill material was used to level the pond prior to building the movie theater parking lot. So based simply on a quick look at one historical aerial photo of the site, there certainly would be valid reasons to perform confirmatory Phase II sampling. 

This is a 1957 aerial photo of the site which shows some large above-ground storage tanks at the property to the immediate east of the current theater property. This photo shows a pond was present on the theater site in 1957. You know what concerns me the most in this photo?  What municipal officials in their right mind allowed a tank farm to be constructed on a floodplain like this? In the 21st century, this tank farm at this location would be called an "epic planning fail." (photo credit: Pennsylvania Geological Survey).

The recent article indicated that McCandless has spent nearly $40,000 on preliminary soil sampling and associated legal fees.  As an environmental professional, I know that you can install three shallow groundwater monitoring wells and collect and analyze dozens of soil and groundwater samples for under $20,000. I don't know how extensive their Phase II sampling was at this site, but I have to wonder what the legal price tag has been so far. Don't get me wrong, because the legal review is absolutely necessary. However, the cost of legal review is not necessarily indicative of the magnitude of contamination present in the field.  In addition to the environmental due diligence costs, after the $1.25 million sale price for the property,McCandless officials estimated they would incur $400,000 to demolish the theater and its parking lots. Based on my experience with my township's Environmental Advisory Council, I can tell you that Pennsylvania has many grant opportunities for projects like this one, such as the annual Growing Greener grant program. So the out of pocket cost to McCandless to de-develop this land would very likely have been limited to one-half of the total cost after the matching requirement for any available grants. 

I think it's hugely unfortunate that McCandless is foregoing the extremely rare opportunity to de-develop a brownfield into a greenfield. They currently have 33 acres of floodplain paved and impervious, which surely must be exacerbating flooding downstream from this site. The seller would be responsible for the costs of any necessary remediation. The Town simply had to conduct a reasonably thorough characterization of the current soil and groundwater quality and work out an agreement with the seller to ensure that any contamination identified at concentrations above the state's residential cleanup standards is cleaned up to meet those standards.  The Town may even have been able to recover some of those due diligence costs through available grants if they had gone ahead and purchased the land and built the park that was originally proposed. While I certainly do not have all necessary information about the environmental condition of the site to pass judgement on the Town's officials, I have seen enough to have to wonder if they are getting their environmental advice from an environmental professional who has sufficient experience with Pennsylvania's Land Recycling Program (such as myself). 

Cleaning up a contaminated site for future use as a park is not necessarily as easy as cleaning it up for future commercial or industrial use. The residential cleanup standards that must be met for a public park could potentially mean a significantly higher cleanup cost than cleaning up to non-residential standards, in which case the seller might have eventually gotten cold feet. Or the cost differential between meeting residential versus non-residential standards could have been negligible as a percentage of total sale price.  However, I would expect this seller would want to bend over backwards to unload a property that is guaranteed to flood and that, hopefully by now, has zoning limitations on its use due to its location in the 100-year floodplain.

De-development opportunities like this one in McCandless are rare. From my experience, there are very few environmental conditions that cannot be successfully managed when both the buyer and seller of a contaminated property have reasonable expectations and are willing to work together. If I was a McCandless resident, you can bet I would have been making myself heard at their recent Town council meeting.

Growing Smart Controls Long-Term Costs for Communities

I read this great article in Time earlier this week. It’s a brief primer for anyone who wants to hear about how so much of today’s sprawling suburban and commercial development that is touted as economic growth has the opposite effect in the long run. Chuck Marohn is a former municipal planner turned evangelist for Smart Growth.

I heard Chuck Marohn speak about a year and a half ago, and he converted me. The bottom line of Smart Growth is that communities must be sustainable, and new development far removed from existing population and infrastructure is typically not sustainable. All municipal officials should be doing long-term cost/benefit analyses for any new development projects they are considering approving, and private development should not be subsidized by public funds unless there is sufficient long-term pubic benefit.

Unchecked development in the present, sprawling into former farm fields, is not the path to future long-term prosperity. Developers who receive subsidies from state or local governments – whether it’s to extend a sewer line or road widening and traffic signalization – are typically no longer in town to share maintenance costs after the project is built out and sold. They are not around to share in the replacement costs of that new public infrastructure when it’s time to replace the first-generation structures. And because the long-term costs were not considered up front, the tax payers must pay perpetually for those project-specific improvements. It's amazing that more fiscal conservatives have not figured out that sprawl is fiscally unsustainability.

Where I live, in Lower Macungie Township, PA, our Planning Commission and former Board of Supervisors seemingly used to give developers almost anything they asked. Utility concessions, road improvements and stormwater infrastructure were all fair game. Accepting dedications of streets in new residential developments or industrial parks is nothing unusual in most areas, even though the municipality then becomes liable for all repairs, repaving and snow removal. And there is a public safety argument there, because emergency services vehicles need to reliably be able to get to emergencies in these developments.

Stormwater basin in Lower Macungie Townshp, PA

(photo by Lower Macungie Township)

Stormwater management is one thing that local governments certainly should not be subsidizing for developers. Until recently, our municipal government was accepting ownership and liability for stormwater infrastructure from developers. In fact, as of last Fall, out of 88 stormwater basins on record in the township, Lower Macungie township was fully responsible for 23 stormwater basins, with another 23 basins previously agreed to be dedicated to the township upon completion of the projects and transfer of the National Pollutant Discharge Elimination System (NPDES) permits from the respective developers. So the Lower Macungie taxpayers are on the hook to fund the perpetual maintenance on these stormwater facilities.

Four Seasons Development in Lower Macungie.

Development is not connected to surrounding

neighborhoods, but stormwater basins are

maintained by homeowners association.

(photo by Newton Engineering)

Our current Board of Commissioners has gone on record as saying that, going forward, they will no longer accept new stormwater facilities from developers. That's great, because it means that any new residential, commercial or industrial developments must maintain their own stormwater retention basins. That’s significant for new residential developments, because it means that they will have to form a homeowners association to manage their stormwater facilities and associated liabilities. But municipalities cannot afford to continue to absorb these long-term costs from the developers of subdivisions and the subsequent owners of the resulting parcels.

Emmaus, PA. A classic community with mixed-use areas and

a vibrant,walkable downtown district. (photo credit:

http://fltquest.zenfolio.com/img/s2/v4/p956485518-3.jpg)

So while my community’s new projects may remain subject to an illogical, Euclidean zoning map and might not be walkable or connected with the existing community in a Smart Growth kind of way, we can demand that new development must pass a cost/benefit analysis to ensure that the taxpayers will not be saddled with long-term costs unique to the new project.

In Praise of Volunteers

Penns Meadow stormwater basin upland area, showing

trees amidst a sea of wild flowers (photo by author).

I’ve written previously about the naturalized stormwater basin (Penns Meadow) in my township that our Environmental Advisory Council (EAC) has adopted. The basin was a roughly 3.5-acre, shortly-mowed lawn until our county conservation district was awarded a grant in 2010 to retrofit it with three different types of stormwater best management practices featuring appropriate native vegetation. I had the opportunity to work with a small group of great volunteers at Penns Meadow last week to tackle a project, tree protection, that has been on the EAC’s to-do list for a couple of years.

First, let me clarify the role that our township EAC is supposed to have. The EAC was established by ordinance in 2009 by the Board of Commissioners at that time with the stated purpose to:

“advise local governmental agencies including, but not limited to: the Board of Commissioners, the Planning Commission, and the Parks and Recreation Board, on matters dealing with the protection, conservation, management, promotion, acquisition, and use of natural resources including air, land, water, and open space resources located within or affecting Lower Macungie Township.”

And these stated duties are the types of things we discuss at our monthly meetings. However, in a municipality of 22 square miles in which 31,000 residents are connected by over 100 miles of township roads, there are some things of interest to the EAC that don’t fall into standard municipal services categories. For example, following up on proper maintenance of the Penns Meadow stormwater basin area has never really been officially delegated to any particular department or staff members.

Although the EAC was never intended to be a hands-on group of volunteers, we make an effort to coordinate volunteer projects once or twice a year for the good of the township’s natural resources. Many of these projects have involved Penns Meadow, simply because the retrofit was a great project and we want to ensure that the original efforts are properly maintained. And such was last week’s project at Penns Meadow, with the volunteer labor supplied by a group of Master Watershed Stewards.

Tree tube installed on a tree to prevent

rodent damage to bark (photo by author).

Our local Master Watershed Stewards Program is run by the Penn State Extension service. It currently operates in only three of PA’s 67 counties, however. Similar watershed steward programs are run by state land grant colleges and universities in a few other states (Arizona, New York and Ohio). Several other states have Master Naturalist programs that are probably comparable. Our Pennsylvania Master Watershed Stewards complete 40 hours of training on a wide range of topics such as:  the hydrologic cycle, groundwater, water chemistry, water test interpretation, stream ecology, wetlands, forestry, dam removal, riparian buffers, soils, geology, invasive plants, stormwater and flooding. Following training, 50 hours of volunteer work are required to complete the program and earn the title. In successive years, 20 hours of volunteer work and 10 hours of continuing education are required. It’s only in its second year here, but it looks like it’s turning into a great program. And for an EAC chair who is often looking for volunteers to help with the Penns Meadow stormwater basin site, I’m happy to have some new volunteers to include so that I don’t burn out the boy scouts who usually help us with projects each year.

Mulch from township's yard waste composting
operation and tree with a protective tube in
background (photo by author).

Last week’s project with our Watershed Stewards involved installing tree protection tubes around the trunks of 140 trees and spreading some mulch at the base of those trees. The tree tubes will serve two purposes. First, they will improve the visibility of some of the smaller trees among tall, dead, herbaceous vegetation in the winter when the area gets its annual mowing. We’ve had mishaps with trees getting run over once before, because the EAC did not have the trees marked out clearly enough. The second, and more critical, need for the tree tubes is to prevent rabbits and other smaller rodents from eating the bark around the trunks over the winter. While helping to install some of the tubes last week, I noticed at least one tree that had a ring of bark gnawed off around the base of it. Bark damage that encircles a tree like that is called girdling. If that girdling continues all the way through the bark into the underlying cambium layer, a tree does not stand much chance of surviving. Hopefully, with the new tree tubes in place, the girdled tree I saw can recover, and girdling of other trees will be prevented.

Thanks to the Lower Macungie Public Works Department for delivering about 10 cubic yards of mulch to the site – enough for all 140 trees receiving tubes. The Watershed Stewards distributed the mulch to each of the trees with either wheel barrow or by lugging a couple of five gallon buckets. Thanks to Julie, Shannon, Jien and Crystal for your sweat equity in Penns Meadow.

It was a hot evening, but it was nice to see the wildflowers in bloom. They look a heck of a lot better than a scorched lawn at this time of year.

Purple cone flowers (foreground) and wild bergamot (background) in bloom (photo by author).

Black-eyed susan (yellow) and swamp milkweed (tall with purplish flowers) in bloom (photo by author).

Climate Change From a Fish-eye View

For those of us who acknowledge that climate change is real and is already happening, we have the advantage of planning ahead to identify actions that we can take on a local scale to alleviate some of the effects we expect to see throughout the rest of our lifetimes. The U.S. Congress and global diplomats certainly have the ability to take much bigger strides to try to mitigate a climatic tailspin by taking action to lessen the amount of carbon dioxide going into the atmosphere. But let’s consider something each of us can do to mitigate some of the CO2 already in the atmosphere. Plant trees.

A shade tree is capable of absorbing and storing as much as 48 pounds of CO2 in one year. In 40 years, a tree can sequester one ton of CO2 (http://www.ncsu.edu/project/treesofstrength/treefact.htm). That’s pretty substantial, especially considering that most large shade trees (non-ornamentals) can live decades beyond 40 years.

I have a feeling that not very many climate deniers are going to be reading this post. But just in case, for their benefit, I’ll point out another important benefit of planting more trees in our communities. Stormwater control. Trees can manage some of the stormwater heading for waterways in two ways. First, they intercept rainfall before it hits the ground. The result is a delay in the rain hitting the ground as it hangs out on the vast surface area of the leaves and bark. Think about how often you’ve walked under a tree after a rain shower and had raindrops fall from the leaves onto your head and shoulders. And more significantly, trees consume huge amounts of stormwater after it hits the ground. A mature oak can consume up to 40,000 gallons per year. Decreased stormwater runoff means less severe flooding. It’s estimated that for every five percent increase in tree cover in a community, the stormwater runoff is decreased by approximately two percent (https://www.americanforests.org). A two percent decrease might not sound like much, but for municipalities trying to meet the requirements of their EPA stormwater discharge permit (Municipal Separate Storm Sewer System, or MS4, permit), every gallon that doesn’t go into the local creek is a welcome reduction. Trees also absorb some of the pollutants picked up by stormwater, keeping them from washing into waterways as well. See, trees have something to offer everyone regardless of their climate beliefs.

So, speaking of trees, my local Trout Unlimited chapter (the Little Lehigh Chapter) last week was awarded a 2014 Coldwater Conservation Implementation Grant from the Coldwater Heritage Partnership. The Coldwater Heritage Partnership’s mission is to provide leadership, coordination, technical assistance, and funding support for the evaluation, conservation and protection of Pennsylvania's coldwater streams. The partners are Pennsylvania Fish and Boat Commission, Pennsylvania Department of Conservation and Natural Resources, Foundation for Pennsylvania Watersheds, and Pennsylvania Council of Trout Unlimited. The chapter will use this $5,172 grant to purchase and plant 76 appropriate shade trees throughout five selected areas along the Little Lehigh Creek in Lower Macungie Township that have significant gaps in the streamside riparian buffer tree canopy. As they mature, these shade trees will help to maintain the naturally cool water temperature in the spring-fed Little Lehigh to help prevent heat stress on the native trout during the summer months.

 

Little Lehigh Creek at Willow Lane in East Texas, PA. 

But this grant award is a win for more than the Little Lehigh’s native trout. As the trees grow, they will be sucking up stormwater runoff heading for the creek along with some of the road salt, fertilizer, oil and grease typical in suburban stormwater runoff. And, by 2054, these 76 trees will have absorbed approximately 76 tons of CO2 from the atmosphere.