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Striking a Balance:Local Government Implementation of Land Use Controls Strategies from the 2003 Brownfields Peer Exchange

A PUBLICATION OF ICMA’S BROWNFIELDS PROGRAM

About ICMA

The International City/County Management Association (ICMA) is the profes-sional and educational association of more than 8,000 appointed executiveadministrators serving local governments. Members manage cities, counties,

towns, townships, boroughs, regional councils, and other local governments in theUnited States and throughout the world with populations ranging from a few thou-sand to several million people.

Founded in 1914, ICMA pursues the mission of enhancing the quality of localgovernment through professional management. Its members turn to ICMA for infor-mation, research, and technical assistance on many issues of special interest. ICMA’smanagement assistance includes a wide range of publications, training programs,research and information.

ICMA’s Research and Development Department seeks to enhance the quality oflocal government management through information sharing, technical assistance,research, and partnership building among concerned stakeholders. The Research andDevelopment Department has been studying the role that local government can playin a variety of brownfield issues through a cooperative agreement with the U.S.Environmental Protection Agency, Cooperative Agreement No. CR-R-82870801.

Other ICMA publications made possible by this and prior cooperative agreementswith the U.S. Environmental Protection Agency include:Beyond Fences: Brownfields and the Challenges of Land Use ControlsBrownfields and Utility Sites: A Primer for Local GovernmentsBrownfields Blueprints: A Study of the Showcase Communities InitiativeBrownfields Redevelopment: A Guidebook for Local Governments and Communities-

Second Edition Building New Markets: Best Practices from ICMA’s 1999 Brownfield Peer ExchangesGetting the Job Done: Strategies and Lessons Learned in Facilitating Brownfields Job TrainingGrowing Greener: Revitalizing Brownfields Into GreenspaceICMA Base Reuse Handbook: A Navigational Guide for Local GovernmentsLand Use Controls: Insights and Observations - A Summary of ICMA’s LUC Forums and

LUC Framework for Local GovernmentsMeasuring Success in Brownfields Redevelopment ProgramsNavigating the Waters: Coordination of Waterfront Brownfields RedevelopmentOld Tools and New Uses: Local Government Coordination of Brownfields Redevelopment for

Historic and Cultural ReusesPartners in Planning: Strategies from the 2001 Brownfields Peer ExchangeRighting the Wrong: A Model Plan for Environmental Justice in Brownfields RedevelopmentSmall Spaces, Special Places: Coordination of Rural Brownfields Redevelopment

For more information the ICMA Brownfields Program, please contact:Danielle Miller WagnerDirector, Brownfields ProgramInternational City/County Management Association777 North Capitol Street, NE, Suite 500Washington, D.C. 20002-4201

This report was developed under a cooperative agreement between ICMA and theU.S. Environmental Protection Agency, Cooperative Agreement No. CR-R-82870801.

The opinions in this guidebook are solely those of the author, and do not neces-sarily reflect the views of the U.S. Environmental Protection Agency.

All information contained herein is based on the research and expertise of theauthor unless otherwise noted.

©November 2003 by the International City/County Management Association.

04-060 43051

AcknowledgementsThe author expresses sincere appreciation to the many people who provided inputand guidance during the preparation of this publication. Particular thanks go to theU.S. Environmental Protection Agency’s Office of Solid Waste and EmergencyResponse, the Office of Brownfields Cleanup and Redevelopment and other staffmembers for their advice and project support.

Additionally, the author appreciates the time and commitment of those whoattended the Land Use Controls Peer Exchange to offer their experiences in brown-fields redevelopment and questions about land use controls:

Chatauqua County, New YorkCheryl Ruth, Department of Public Facilities, Chautauqua County

Louisville-Chatauqua County, KentuckyBonnie Biemer, Environmental Policy Office, Louisville-Jefferson County

Metro GovernmentFred Nett, Environmental Policy Office, Louisville-Jefferson County

Metro GovernmentMike Kmetz, Environmental Policy Office, Louisville-Jefferson County

Metro GovernmentBruce Seigle, Municipal Sewer District, Louisville-Jefferson County

Metro GovernmentTed Sauer, Louisville-Jefferson County Redevelopment AuthorityMike Ballard, Louisville-Jefferson County Redevelopment AuthorityAnthony Hatton, Kentucky Department of Environmental Protection,

Division of Waste Management

Phoenix, ArizonaDonn Stoltzfus, Office of Environmental Programs, City of Phoenix

Topic ExpertsMichael Sowinski, Environmental Information Systems, DPRA Inc.Joseph Schilling, Community and Economic Development Program, ICMA

Furthermore, the author wishes to express gratitude to Peer Exchange partici-pants who provided comments that helped shape the final version of this report.

The authors also wish to thank fellow ICMA staff members who assisted in devel-oping this report: David Borak, Joseph Schilling, and Danielle Miller Wagner.Special thanks is also given to Dawn Leland and Carol Earnest of the ICMAPublishing and Data Services department for their assistance with the design and layout of the publication, as well as Barbara de Boinville for her editorial contribu-tions and insights.

Table of ContentsAbout ICMA iiiAcknowledgements vAcronym List viii

Chapter 1: Introduction 1Overview 1Land Use Controls Defined 2Local Opportunities to Promote Economic Development

while Protecting Public Health and the Environment 2Roles of Stakeholders 3The Peer Exchange Concept 3Research Methodology 4Organization of the Report 4

Chapter 2: Current and Emerging Themes 5Overview 5Maintaining Land Use Controls 7

Design and implementation 7Stakeholder coordination 8Information management 10Enforcement 10Funding 11

Chapter 3: Profiles of Peer Exchange Communities 13Chautauqua County, New York 13Louisville-Jefferson County, Kentucky 17

Chapter 4: The Chautauqua County and Louisville-Jefferson County Peer Exchange 23

Overview 23Design and Implementation 24Stakeholder Coordination 28Information Management 33Enforcement 36Funding 41Conclusions and Next Steps 44

List of Tables Table 2.1: Examples of Institutional Controls at Contaminated Sites 6

Table 4.1: Selected Federal Resources for Brownfields Cleanup and Redevelopment 43

viii Striking a Balance: Local Government Implementation of Land Use Controls

Acronym List

ADEQ Arizona Department of Environmental Quality

Brownfields Law Small Business Liability Relief and Brownfields Revitalization Act

CERCLA Comprehensive Environmental Restoration, Compensation, and Liability Act

DEP (Massachusetts) Department of Environmental Protection

DEUR Declaration of Environmental Use Restriction

DTSC (California) Department of Toxic Substances Control

EC Enterprise Community

EPA U.S. Environmental Protection Agency

EZ Empowerment Zone

FAM financial assurance mechanism

GIS geographic information system

HUD U.S. Department of Housing and Urban Development

IC institutional control

ICMA International City/County Management Association

IPA Intergovernmental Personnel Assignment

LUC land use control

LUCIP land use control implementation plan

LOJIC Louisville-Jefferson County Information Consortium

MSD (Louisville-Jefferson County) Metropolitan Sewer District

NREPC (Kentucky) Natural Resources and Environmental Protection Cabinet

NPL National Priorities List

NYSDEC New York State Department of Environmental Conservation

PCB polychlorinated biphenyl

PVA (Louisville-Jefferson County) Property Valuation Administrator

RC Renewal Community

RCRA Resource Conservation and Recovery Act

Redevelopment (Louisville-Jefferson) County Redevelopment AuthorityAuthority

SI/RAR site investigation/remedial alternatives report

Superfund Comprehensive Environmental Restoration, Compensation, and Liability Act

USDA U.S. Department of Agriculture

UST underground storage tank

VCP voluntary cleanup program

VERA (Kentucky) Voluntary Environmental Remediation Act

Chapter 1

Introduction

OverviewThe cleanup and redevelopment of contaminated properties are becoming widelyaccepted tools in community design and revitalization strategies. Congress passed theResource Conservation and Recovery Act (RCRA) in 1976; the ComprehensiveEnvironmental Restoration, Compensation, and Liability Act (CERCLA or Superfund)in 1980 (amended in 1984); and the Small Business Liability Relief and BrownfieldsRevitalization Act (Brownfields Law) in 2001. Since passage of these laws, local, state,and federal agencies, as well as private enterprises and the general public, haveworked to understand how cleanup and redevelopment challenges are affected bygovernment policies. They also have worked together to develop innovative means ofrevitalizing contaminated and abandoned properties by addressing questions offinancial, liability, and jurisdictional responsibility.

Since the inception of Superfund, 1,509 properties have been placed on theNational Priorities List (NPL), an inventory of the most severely contaminated prop-erties in the United States.1 By the year 2000, the number of NPL sites where cleanupand redevelopment had been completed reached 757 properties, with another 417cleanup and construction projects under way.2 The signing of the Brownfields Law in2001 signified sustained national interest in the cleanup and redevelopment of formerindustrial, commercial, and military sites. In addition to tackling the most severelycontaminated properties in the country, government officials and community mem-bers began to take advantage of liability assurances and financial incentives to assess,remediate, and redevelop vacant, underused, and potentially hazardous brownfields.The opportunity to reclaim these brownfields properties will continue to grow asneighborhoods that have suffered from the real or perceived presence of hazardouswastes take action.

Many questions that surround the cleanup and redevelopment of potentially con-taminated properties are not concerned with why but how. Because of industrial andcommercial practices, contaminants have been left in place in buildings and infra-structure, buried or leached into the soil and water table, or carried off-site in surfacewater and groundwater. Remediating contaminants without exacerbating the expo-sure of the public and the environment to pollutants is of concern to city planners andstate and federal environmental officials. The challenge, therefore, is to blend environ-mental cleanup, public health protection, and site reclamation with opportunities foreconomic development and community revitalization.

1 U.S. Environmental Protection Agency, “Superfund Cleanup Figures, Superfund, US EPA.” Available athttp://www.epa.gov/superfund/action/progress/mgmtrtpt.htm. July 14, 2003.

2 Ibid.

2 Striking a Balance: Local Government Implementation of Land Use Controls

Land Use Controls DefinedLand use controls (LUCs) are “legal mechanismsthat protect public health and the environmentfrom residual contamination at brownfields andSuperfund properties, former military installa-tions, or other contaminated properties.”3 LUCsreduce financial and liability concerns for redevel-opment activities in two ways. First, they decreasecosts by containing, recording, and limiting expo-sure to residual levels of contamination. Second,land use controls establish legally enforceableagreements that attach to and transfer with realestate instruments. Those instruments describerestrictions on land uses and activities that applyto former, current, and future property owners,lessors, lessees, and facility operators.

Land use controls can be engineering controlsor institutional controls. Engineering controls arephysical mechanisms that contain, mitigate, ormonitor residual contamination, as well as pro-hibit access to the property or specific area inquestion. Engineering controls range from con-tainment caps to simple fences. Institutional con-trols (ICs) include private and public notices andprocedures that make public all necessary infor-mation pertaining to a contaminated property.Institutional controls can be divided into four cat-egories: governmental controls, proprietary con-trols, enforcement and permit tools with ICcomponents, and informational devices. Examplesof ICs include public notices and advisories, per-mits, and zoning ordinances, as well as privatedeed restrictions, easements, and other restrictivecovenants. For detailed descriptions of land usecontrols as well as ways that local governmentscan develop and implement them, see Chapter 2,Current and Emerging Themes.

Local Opportunities to PromoteEconomic Development whileProtecting Public Health and theEnvironmentRedeveloping contaminated sites can return idleproperties to productive use. By redeveloping andreusing former industrial facilities, local officialscan stem the migration of commerce, jobs, and cit-izens from the urban core to suburban communi-ties. Additionally, infill development (a commonform of redevelopment) can help to keep develop-ment within a city’s existing boundaries, thus pre-serving open space and decreasing the effects ofurban sprawl. Land use controls are an essentialpart of this picture. Local officials are recognizingLUCs as mechanisms that:

• Streamline the cleanup and redevelopment ofcontaminated properties by allowing negotiatedresidual levels of contamination to remainonsite;

• Provide incentives for communities to clean upand redevelop brownfields as an alternative todeveloping greenfields;

• Account for contamination in accessible publicrecords in perpetuity;

• Protect the general public from future exposureto hazards associated with cleanup, redevelop-ment, and future property uses; and

• Promote information sharing and coordinationamong local, state, and federal agencies, as wellas private stakeholders and the general public.

Although there is considerable debate overcleanups that leave residual contamination at aproperty, complete remediation may not be feasi-ble. Economic realities (such as a lack of fundingfor potentially extensive cleanups or a lack ofmarket-driven impetus for redevelopment) andongoing scientific uncertainty about “safe” reme-diation levels often lead to circumstances that pre-clude complete remediation of a property.Moreover, dilapidated buildings, infrastructure,and debris — as well as trespassers and illegalactivities at a property — may pose additionalthreats to the health and safety of a community.Redeveloping a blighted and potentially danger-ous property in a manner that controls exposure


3 Joseph Schilling, Christine Gaspar, and Nadejda Mishkovsky,Beyond Fences: Brownfields and the Challenges of Land UseControls,(Washington, D.C.: International City/CountyManagement Association, 2000), p. 4.

to contaminants will have greater long-term bene-fits for the community than simply cordoning theproperty off from nearby homes and residents.Local governments are recognizing the benefits ofland use controls and other innovative redevelop-ment strategies to safely combine environmentaland public health protection, economic develop-ment, and community revitalization.

Roles of StakeholdersTo develop, implement, and manage land use con-trols, governmental and nongovernmental stake-holders in the redevelopment process mustcoordinate their efforts. Local governments,because of their role in planning, issuing permits,and installing and maintaining infrastructure, areideally suited to regulating and monitoring landuse controls. They also have knowledge of theproperties, owners, operators, developers, andother stakeholders in the community.

State governments have the authority toenforce environmental laws and cleanup stan-dards, issue legal covenants to innocent andresponsible parties, and maintain a comprehen-sive statewide list of contaminated properties andland use controls. Many states administer volun-tary cleanup programs (VCPs) that often inte-grate LUCs and other agreements in negotiatedcleanup remedies.

At the federal level, environmental regulation,oversight, and enforcement are typically handledby the U.S. Environmental Protection Agency(EPA), although the U.S. Department of Defense,the U.S. Department of Energy, and the U.S.Department of Justice have jurisdiction in certainareas, depending on the type of land use, owner-ship of the property, contamination levels, andregulatory action in question. Land use controlsare often required by federal legislation (CERCLAand RCRA) as part of remedy selection andrecords of decision for cleanup activities.

Land use controls cannot be effective withoutlong-term means of tracking, enforcing, and fund-ing them. To this end, input and endorsementfrom stakeholders are essential. Their involvementis critical to the overall success of community revi-talization efforts that incorporate land use controls.

To facilitate coordination among governmen-tal and nongovernmental stakeholders in the rede-velopment of contaminated properties and the useof LUCs as tools of revitalization, the InternationalCity/County Management Association (ICMA)conducted the Land Use Control Peer Exchange.ICMA’s Research Team identified and docu-mented the challenges and opportunities facinglocal governments in five areas: design and imple-mentation of land use controls, stakeholder coor-dination, information management, enforcement,and funding.

The Peer Exchange ConceptIn 1998, the International City/CountyManagement Association initiated theBrownfields Peer Exchange program through acooperative agreement with the U.S.Environmental Protection Agency. ICMA con-ceived of the program as a way to conductresearch into brownfields best practices and assistlocal brownfields practitioners in overcomingchallenges to their redevelopment efforts.

The Peer Exchange program links two com-munities that have requested assistance with simi-lar aspects of brownfields cleanup andredevelopment. Although tailored to the specificgoals of the communities involved, every PeerExchange is designed to:

• Conduct research on common issues communi-ties face when redeveloping brownfields andother contaminated properties;

• Identify successful strategies and methodsemployed by communities in overcoming obsta-cles to redevelopment; and

• Offer redevelopment practitioners an opportu-nity to share their experiences with their peers.

The Peer Exchange program enables communitiesfacing specific problems to learn from others thathave successfully overcome the same obstacles.Participating communities have the opportunityto develop their management and outreach skills,view their own initiatives from a new perspective,and gain national recognition for their achieve-ments. They also gain valuable technical assis-tance from experienced local officials and private

Chapter 1: Introduction 3


sector experts, and develop their own professionalexpertise. All participating communities learnabout innovative approaches to redevelopmentand have the opportunity to establish an ongoingrelationship with another community.

Over a period of several months, ICMA solic-its applications to the Peer Exchange programthrough a variety of media outlets targeting localgovernments and brownfields practitioners.ICMA also reaches out to specific communitiesthat are known to have particular areas of expert-ise or a desire to explore a particular brownfieldsissue. It encourages those communities to apply tothe program. Communities are selected for a PeerExchange based on how well their skills match theneeds of another.

Research MethodologyParticipants in the 2003 Peer Exchange wereselected in March. In May, ICMA kicked off theprogram with a conference call between represen-tatives of participating communities. The partici-pants were welcomed, introduced to theircounterparts from their peer community and toICMA staff members, and given an overview ofthe activities and timeline of the program.

In June, a second conference call broughttogether representatives from each pair of partici-pating communities. Participants answered toquestions about each community, and jointlydeveloped an agenda for the peer exchange.ICMA staff members then worked with each hostcommunity to finalize details for the peerexchange, including a visit to relevant propertieswithin the host community. The peer exchangesite visit occurred in June 2003.

Upon completion of the peer exchange, ICMAstaff members drafted a case study reporting theresearch findings and lesson learned. Best prac-tices were identified to enable communities thatdid not participate in the peer exchange to learnfrom the exchange. Peer Exchange participantshad the opportunity to review and submit com-ments on the case study draft prior to publication.

Organization of the ReportThis report highlights the best practices, strate-gies, and lessons learned from the peer exchangeprogram. As Chapter 1 has made clear, the suc-cessful development and implementation of landuse controls can enhance the cleanup and redevel-opment process at brownfields and other contami-nated properties. Chapter 2 provides an in-depthlook at land use controls and the challenges andopportunities that local governments and otherpublic and private stakeholders face in maintain-ing them.

In Chapter 3, profiles of the two PeerExchange communities — Chautauqua County,New York, and Louisville-Jefferson County,Kentucky - are presented. The chapter gives anoverview (geographic, economic, and demo-graphic) of the brownfields program in each com-munity, its brownfields program, explains specificredevelopment initiatives and identifies pressingtopics related to land use controls that wereaddressed during the Peer Exchange.

Chapter 4 summarizes the discussions thatoccurred at the Peer Exchange betweenChautauqua County, New York, and Louisville-Jefferson County, Kentucky, in five areas: thedesign and implementation of land use controls,stakeholder coordination, information manage-ment, enforcement, and funding. It reports onthe logic for matching the two communities andprovides a context for their brownfields redevel-opment efforts. Research findings in the fiveareas are summarized. Unless otherwise noted,all details, facts, and figures (such as demo-graphics, unemployment rates, and others) werereported by the primary contacts for each respec-tive community.

Current and Emerging Themes

OverviewEffective land use controls (LUCs) protect human health and the environment at con-taminated properties targeted for cleanup and redevelopment. Standards for the levelof cleanup vary according to the future use of the property. The term “unrestricteduse” refers to cleanup levels safe for any possible future property use, such as hous-ing, schools, and other activities where people, including sensitive populations, maycome into direct contact with soil, groundwater, or vapors. Land use controls allowfor remediation of a property to levels that are determined to be safe for restrictedland uses (which have standards less stringent than those for unrestricted uses). Forexample, redeveloping a contaminated, former industrial property for similar indus-trial operations would not require the same level of cleanup as residential housing, ahospital, or a school.

In lieu of costly and timely cleanup measures, local governments, property own-ers, and site managers implement various land use controls. These controls limit thekinds of activities that can occur on the property. LUCs often establish procedures andpoints of contact if the controls are breached or if a property owner, lessor, or lesseewishes to modify on-site buildings or infrastructure. LUCs are also binding mecha-nisms that stakeholders with legal interests in the property are subject to uphold. Ifcontrols are breached or ignored, enforcement actions can be taken. The implementa-tion plans and supporting documents that may accompany LUCs frequently outlinethe responsibilities and liabilities of all stakeholders affected by a property before,during, and after cleanup and redevelopment.

The effectiveness of land use controls to safeguard public health and the environ-ment remains a concern, however. Although LUCs are proven means to leverage rede-velopment by providing incentives for reduced remediation costs to developers andproperty owners (including potentially responsible parties), many argue that leavingany amount of contamination on a property is inherently unsafe. Thus, the challengeis to create LUCs that successfully blend economic development and community revi-talization but not at the cost of protecting public health and the environment.

This chapter defines the two main categories of land use controls (institutionaland engineering controls) and explains the role of various levels of government, theprivate sector, and the general public in implementing and maintaining LUCs. Thechapter specifically addresses the five primary ingredients in LUC maintenance:design and implementation, stakeholder coordination, information management,enforcement, and funding.

Chapter 2


Institutional and Engineering ControlsLand use controls may be engineering controls orinstitutional controls. Engineering controls arephysical mechanisms that contain, mitigate, ormonitor residual contamination, as well as pro-hibit access to the property or specific area inquestion. Engineering controls range widely. Theyinclude sophisticated monitoring equipmentlinked to informational databases, containmentcaps, and simple fences. Institutional controls(ICs) are legal and administrative procedures

designed to prevent unallowable land uses and tomake public any limitations on the future uses ofcontaminated properties.

Types of Institutional ControlsInstitutional controls can be divided into four cat-egories: governmental controls, proprietary con-trols, enforcement and permit tools with ICcomponents, and informational devices. Each typewill be discussed in turn.

Table 2.1 Examples of Institutional Controls at Contaminated Sites

Government Controls

Notices and advisories inform the public ofexisting contamination on a site or of the risks ofdrinking contaminated groundwater. These legalnotices are often implemented with physicalcontrols such as fences.6

Zoning regulates the location and uses of land.For example, industrial uses and activities mightbe barred in residential areas. Local govern-ments usually pass planning and zoning ordi-nances to restrict land uses.

An overlay zone provides additional limits, suchas a contaminated groundwater managementzone. An overlay zone is drawn over an existingzoning use map to provide extra protection.

Permits can be issued by state or local govern-ments to allow certain activities for example,building, grading, and development that are oth-erwise restricted. Permits have many uses, theymay be used at hazardous waste sites to restrictthe construction or location of new wells, limitsoil excavation at sites with contaminated sub-soils, or limit the ability to alter a cap, for exam-ple.

Siting restrictions limit land use in areas thatare prone to natural hazards, such as floodplainsand earthquake fault lines.

State statutory ICs. Several states (for example,Iowa, Arizona, New Hampshire, and NorthCarolina) have created specialized easements,deed restrictions, and deed notices for brown-fields and state Superfund sites.

Proprietary Controls

A deed restriction generally enables the priorowner to constrain the current owner’s use ofthe land. While deed restrictions have no legalmeaning, the term as used by state voluntarycleanup programs includes a broad array of pri-vate real property controls, such as restrictivecovenants and equitable servitudes.

A common form of deed restriction that oftenappears as an institutional control is a covenant,which usually limits specific types of develop-ment, use, or site construction.

Reversionary interests restrict the owner touses that are compatible with the intendedfuture use of the site. If that restriction is vio-lated, ownership of the site reverts to the previ-ous owner.

An easement is used when a site owner trans-fers a limited ownership interest in the propertyto a recipient who “holds” the easement andwho can preclude certain property uses.

6 The ASTM subcommittee (E50.04) uses the term informa-tional devices to describe another type of control, includingnotices and advisories. The term access restrictions describescontrols such as fences, warning signs, or security systems.Likewise, ASTM groups permits under the heading enforce-ment tools. However, for the sake of simplicity, because gov-ernment bodies generally control the issuance of notices,advisories, and permits and because local government is thefocus of this report, this discussion will include notices, advi-sories, and permits under the governmental heading. (SeeASTM Guidance E50.04 for more information.)

Governmental controls are implemented byeither the local or state government, but theyrequire coordination among both levels of govern-ment in order to be upheld. Examples includeland use regulations that fall under the policepowers of both local and state governments, suchas zoning codes, ordinances, statutes, buildingpermits, and other provisions designed to restrictland or resource use on a property. To restrict landuse and activities in their jurisdiction, local gov-ernments may enact a variety of land use meas-ures ranging from single-property use restrictionsto comprehensive overlay zoning districts.Because such controls on land use are delegatedto state and local governments, federal regulatorshave little oversight responsibility over theirdesign, implementation, modification, termina-tion, or enforcement. Governmental controls havethe benefit of being overseen and maintained by astable, established institution (a state and/or localgovernment). However, these controls mayrequire specific yet flexible agreements to estab-lish how each governing body will interact andcoordinate to manage ICs within its jurisdiction.

Proprietary controls are rooted in real prop-erty law. They are legal instruments such as ease-ments and covenants, placed in the chain of titleto a property. Typically, proprietary controlsinvolve the conveyance of a property interest to asecond party with the intention of restricting landor resource use in the future. An advantageoffered by these controls is that they establishbinding and transferable agreements on subse-quent owners through the chain of title. However,because they are rooted in real property law, pro-prietary controls afford many personal propertyrights to individual property owners. These rightsare based on the common law jurisdiction wherespecific properties are located. As such, the imple-mentation or enforcement of proprietary controls,could become mired in litigation and cost localgovernments additional time and resources.

Enforcement and permit tools with IC com-ponents are land use and activity restrictionsauthorized under the ComprehensiveEnvironmental Restoration, Compensation, andLiability Act (CERCLA or Superfund)4 or theResource Conservation and Recovery Act

(RCRA).5 Such controls are not authorized by alocal (or state) governmental authority. Rather,they are issued by private property managers.Although they provide for federal enforcementoptions, these agreements are only binding on sig-natories and do not transfer to future propertyowners with subsequent property transactions.

Informational devices provide notificationthat residual contamination exists in some formon a property. Examples of informational devicesinclude state registries of contaminated properties,deed notices, and public advisories. These devicesare generally used as a secondary means of notify-ing the public and interested parties of onsite con-tamination and existing land use controls oractivity restrictions.

Maintaining Land Use ControlsLand use controls, if maintained over time, protecthuman health and the environment, encourageeconomic development, and streamline thecleanup and redevelopment of contaminatedproperties. The primary ingredients in this processare as follows:• Design and implementation;• Stakeholder coordination;• Information management;• Enforcement; and • Funding.

Design and ImplementationDesigning and implementing land use controlsrequires careful analysis of the property in ques-tion. Items to consider include the amount of con-tamination present, proposed redevelopmentplans, the amount of cleanup required for suchdevelopment, the neighborhoods in the vicinity,and how future activities at or near the propertywill be protected by LUCs.

Chapter 2: Current and Emerging Themes 7

4 CERCLA sections 104 and 106(a) allow UnilateralAdministrative Orders and Administrative Orders on Consent tobe issued to compel a property owner to limit specific activities atfederal and private sites. Additionally, CERCLA section 122(d)allows for the negotiation of Consent Decrees at private sites.

5 RCRA sections 3004(a), 3004(u) and (v), 3008(h), and 7003

authorize permits and condition and/or issue orders that are

enforceable by the U.S. Environmental Protection Agency.


Designing and Implementing Simple andEffective ControlsThe wording of land use controls should be sim-ple and specific. Details concerning, for example,use restrictions, monitoring requirements, andenforcement and response triggers, should beincluded to eliminate or reduce ambiguous andvague terminology. When implemented, land usecontrols should successfully blend communityand revitalization goals.

Local governments can improve their ownimplementation strategies by learning from othermunicipalities that have incorporated LUCs inrevitalization initiatives. Working with state attor-neys and environmental officials will clarify theadministrative and environmental aspects of stateand federal statutes and regulations. In addition,professional associations serving local govern-ments and environmental and legal groups maybe able to provide guidance or offer sample docu-ments and language. To help determine what typeof controls best serve their needs, and how to craftthe legal language and structure of the document,some local governments solicit the services of out-side legal counsel or land use specialists.

Gauging the Suitability of ControlsSelecting and designing the “right” land use con-trol for an intended cleanup and redevelopmentplan is one step toward effective implementation.Other steps include accurately analyzing site con-ditions and anticipating how those conditionsmight change or be breached by redevelopmentand future onsite activities, as well as accidentsthat might occur along the way. While it is impos-sible to accommodate all unforeseen contamina-tion releases or discoveries, particularly in thecase of natural disasters or activities that shouldhave been prohibited by a LUC, forethought bylocal governments in the design and implementa-tion phase can protect them from future liabilityconcerns and policy revisions.

Layering Controls To Provide MultipleSafeguardsAnother approach to effective implementation is“layering” land use controls. Layering refers tothe use of multiple land use controls on a givenproperty or properties to ensure redundancy and

to address multiple aspects of the cleanup andredevelopment process, including specific con-taminants, soil and groundwater conditions, andnotification procedures for future actions. By lay-ering multiple controls, local governments canhelp to ensure that if one control fails, backupcontrols will remain in place. For example, onelayer might be environmental covenants with arobust tracking mechanism to record and track theLUCs. Another layer might be an overlay zonethat restricts future uses of the property. Anotherway to provide multiple safeguards is to imple-ment specific controls at different times during thelife cycle of the cleanup, redevelopment, andreuse process.

Including Modification and TerminationProvisions in ControlsAnother important component of LUCs is a sys-tem that allows controls to be modified or termi-nated as time passes. For example, ifenvironmental conditions at a property change(for example, if new areas of contamination arediscovered or a natural disaster disrupts an engi-neered cap), it may be necessary to modify anexisting restriction. Conversely, if environmentalcontamination is determined to no longer be athreat to human health or the environment, it maybe advisable to terminate a control.

Stakeholder CoordinationStakeholder coordination is a challenging aspectof cleaning up and redeveloping brownfields andother contaminated properties. Local governmentsare in ideal positions to implement and overseeland use controls within their jurisdictions. Tointroduce the concept of LUCs and develop oraugment a program to design, implement, andmaintain those controls may require the coordina-tion of multiple departments of local governmentand numerous elected officials. The authority toenforce environmental regulations, is typicallyreserved for state regulators. Therefore, coordinat-ing with state (and federal) government counter-parts can enhance the design and implementationof LUCs, as well as encourage innovative meansof enforcing and funding those controls. Finally,reaching out to nongovernmental stakeholders,including private sector enterprises and the gen-

eral public, can be useful in creating land use con-trols and redevelopment strategies.

Lateral CoordinationLateral coordination refers to intragovernmentalcollaboration between local government depart-ments and officials. Sound lateral coordination isbased on communication among affected staffmembers who solicit endorsement from appropri-ate officials and manage tasks on a day-to-daybasis. Effective communication within a local gov-ernment facilitates the development of uniformpractices and procedures for designing, imple-menting, and maintaining LUCs. It also can createawareness of tools and resources in differentdepartments that may be synthesized or used innew ways to improve LUC management. Bystrengthening intergovernmental communicationand soliciting endorsement from individuals suchas elected officials and senior appointed officials,local governments generate buy-in for LUCs. Thisbuilds momentum and helps to ensure long-termsupport for redevelopment and maintenanceefforts. Meetings to solicit feedback and supportalso are beneficial. In this way local governmentsuphold professional courtesy and keep multipledepartments informed of emerging projects andinitiatives. Finally, a LUC management strategythat involves various local government depart-ments builds on efforts to communicate informa-tion, solicit endorsement, and synthesizeresources. By creating institutional knowledge ofLUC information and maintenance programs,local governments can ensure long-term oversightof controls regardless of administrative and politi-cal turnover.

Vertical CoordinationVertical coordination refers to intergovernmentalcollaboration by local, state, and federal govern-ments. It is essential for the successful, design,implementation, maintenance, and enforcement ofland use controls. Like lateral coordination, verti-cal coordination is characterized by improvedcommunications between government agenciesand departments and sustained efforts to solicitendorsements for land use controls. State and fed-eral policy makers are made aware of the redevel-opment challenges at the local level. By reaching

out to state and federal counterparts, local officialscan expand their awareness of emerging policiesand funding opportunities designed to promotethe use of LUCs in the redevelopment process. Agood way for local governments to ensure thefuture viability of controls is to work within stateregulatory authorities when designing LUCs.Local officials’ cooperation with state-level coun-terparts may open doors to programs, such as astate voluntary cleanup program, that can serve asmodels or provide financial resources for LUCs.

Involving Nongovernmental StakeholdersNongovernmental stakeholders can and should beincluded in the design and implementationprocess for land use controls. This helps accom-modate the interests of parties that stand to beaffected by LUCs. In a community developers,lenders, and neighborhood residents potentiallyaffected by LUCs can be empowered to takeresponsibility for maintaining and enforcing con-trols. With the proper education (and possiblyincentives or penalties), property owners, facilityowners, and neighborhood residents can assistlocal government officials in monitoring andreporting the performance and breaches of landuse controls.


Establishing LUC Programs

Local officials must determine what will berequired in their community to establish a landuse control program. Collaborative efforts may beneeded to carry out daily operations with regardto implementing, administering, and overseeingLUCs. To solicit buy-in for incorporating LUCsinto comprehensive redevelopment plans, localofficials may find it advisable to arrange explana-tory meetings with appropriate staff members,elected officials, and nongovernmental stakehold-ers. Coordinated strategies or training activitiesto facilitate cooperation among different depart-ments for day-to-day oversight of LUCs also maybe beneficial. By establishing cohesive workingrelationships through effective outreach, feed-back solicitation, and timely follow-up with stake-holders, local officials create a land use programthat is effective and can be maintained on a dailybasis over the long term.


Information ManagementInformation management is essential ingredientfor the long-term effectiveness of land use con-trols. Someone must record and track the controlsthat are in place, how they function, and wherelegal documents containing such information arelocated. Record-keeping databases that canaccommodate LUC-related information need to bedeveloped and maintained. This requires technicalexpertise and, perhaps, the purchase of new hard-ware and software. Developing programs to mapor provide other graphical representations of theproperties that carry land use controls (and theneighborhoods they affect) can be a costly ven-ture. Finally, governments need a mechanism toreadily disseminate such information to appropri-ate staff members and other authorities. At thesame time the privacy of parties required to abideby land use controls must be protected. This cre-ates the challenge of determining access to infor-mation privileges for local government officials.

Recording and Tracking ControlsIn order to record and track land use controls, alocal government must create a means to notifyappropriate staff members of what to do and whoto contact when LUCs are part of a land transac-tion or other development process. Sometimes it isnecessary to modify existing documents andreview processes, or create “flags” to alert staffmembers who process permit applications andother paperwork. In such a system of checks, a“flag” would suspend the application reviewprocess until the proper authorities are consulted.The use of flags and other mechanisms is not onlyan effective way of recording and tracking LUCs.It also ensures that the controls are not breachedby future development or other activities on theproperty. Additionally, the “flagging” systemrequires only that staff members are taught toknow how to react to such a prompt. They neednot be closely familiar with LUCs, legal terms andprocedures, or revitalization strategies.

Developing and Maintaining DatabasesElectronic databases are an effective means toorganize and store LUCs-related data. With elec-tronic records, databases, and other informationtechnologies, information sharing becomes an

instantaneous process. However, the developmentof such a system and efforts to enter and convertexisting information to an electronic format can becostly. Additionally, the capability to readily shareLUC-related data (often of a legally sensitivenature), or to make it available via the Internet,calls for considerable reviews of access privilegesto such information.

Incorporating Mapping TechnologiesAnother means of enhancing a general and strate-gic understanding of LUCs is to create maps andother graphical representations of the propertiesto which they are applied. Specifically, mapsmight visually display the neighborhoods, infra-structure, and natural resources affected by LUCs.Geographic information system (GIS) technologiesare becoming common resources used by localgovernments to geographically map variousaspects of municipal service delivery. While modi-fying existing systems to accommodate LUCs-related information may not be very expensive,the cost for a GIS or similar system may be pro-hibitive for small communities.

EnforcementEnforcement of land use controls is an issue thatcontinues to challenge local, state, and federalgovernments because of an inherent discrepancybetween local and state authority over land useand environmental issues. Many local govern-ments are authorized by state statutes to regulateland use through zoning and permitting powers.Local officials are most familiar with contami-nated sites within their own communities andneighborhoods. State regulators and attorneys,however, are charged with executing the statutesthat govern environmental protection, cleanup,and enforcement actions. As a result, the ability toenforce land use controls requires coordinatedefforts by state and local officials. The appropriatelegal authorities for both levels of governmentmust be clearly established. Moreover, to be ableto assume additional enforcement duties, a localgovernment must conduct an internal assessmentof staff resources and capabilities.

Establishing Legal AuthorityThe first point local governments must address isthe establishment of enforcement authority overland use controls. Local governments are able toregulate land use decisions through zoning andbuilding codes, but they are not usually involvedin the process of selecting site remedial actions(including LUCs). These responsibilities generallyfall to private parties and state regulators.Consequently, the local government role in“enforcing” LUCs may be relegated to “notifying”state authorities of breaches in LUC agreements.By carving out an enforcement role, however,local governments can enhance their ability toprotect human health and the environment intheir jurisdiction. This enforcement role may besubordinate to the role of state regulatory authori-ties, but it nevertheless can strengthen the work-ing relationships between different levels ofgovernment as well as the local decision makingand enforcement capabilities of land use controls.

Assessing Internal Capability In addition to determining the level of enforce-ment authority they wish to assume, local officialsmust assess their capability to carry out thoseresponsibilities. At issue are funding and staffresources and the local government’s ability tocreate new responsibilities for staff or synthesizeexisting responsibilities. The political atmospherein a community will affect local officials’ “willing-ness” to implement LUCs that may be unpopularor difficult to enforce because of logistical orfinancial challenges. Officials may be unwilling toenforce land use controls violated by long-stand-ing community institution or to jeopardize poten-tial redevelopment opportunities. Local judges orcommissions may also be reluctant to hear casesand proposals that involve land use controls.Successful enforcement requires a clear assess-ment of these attitudes.

Coordinating with RegulatorsAfter determining their enforcement role, localofficials need to ensure that proposed actions willcomply with established legislation and environ-mental programs. In some cases, a local govern-ment may need to collaborate with state andfederal authorities to enforce land use controls by

sharing resources; in others cases, it may be neces-sary to outline formal jurisdictional and legalboundaries and responsibilities for governmentagencies. Coordinating with state and federal reg-ulators is a way for local officials to ensure thatLUCs will be enforced properly and comprehen-sively within established legal authorities.

FundingLand use controls reduce the costs of cleaning upand redeveloping contaminated properties. Yetlocal governments facing the challenges andopportunities of implementing land use controlsmust generate additional revenues to pay for theirmaintenance on a long-term basis. Some commu-nities have created innovative financing schemesthat target responsible property owners or futureusers of the site to help pay for the programsneeded to maintain land use controls.

Projecting Long-Term CostsIn many cases, one or several maintenance func-tions is overlooked when a local governmentdesigns LUCs. Cost projections for maintainingand upgrading technologies, training new staffmembers, and enforcing the controls are difficultto estimate, and they may be incorrect or omittedin the design process. As a result, local govern-ments who seek to use LUCs as financial andoperational incentives in the cleanup and redevel-opment process can incur additional costs if thecontrols are designed poorly or require excessiverevisions.

Maximizing ResourcesSome local government land use control strategiescarve out “niches” for LUC maintenance withinexisting agencies and programs. For example,building or park inspectors might be educatedabout specific activities that can and cannot occuron properties carrying LUCs. Such oversightresponsibilities are then added to existing jobrequirements. Other strategies target federal fund-ing opportunities provided by the U.S.Environmental Protection Agency, the U.S.Department of Housing and Urban Development,the U.S. Department of Agriculture, and other fed-eral agencies. They fund LUCs programs or offset



the costs of controls by funding other redevelop-ment costs.7

Developing ResponsibilitiesAnother way to fund the maintenance of land usecontrols is to develop a system that places finan-cial responsibilities on persons responsible forcontamination, property owners, and facility oper-ators. By creating those funding sources, localgovernments can decrease their own financialburdens. They also establish a precedent for hold-ing responsible parties and redevelopment benefi-ciaries accountable. In addition to imposing feesrequired to implement LUCs, local governmentscan institute fines and other penalties for noncom-pliance with LUC provisions.

7 For a list of federal revenue sources that can be used to fundLUCs or offset their costs, see Chapter 3.

Chapter 3

Profiles of Peer ExchangeCommunities

Chautauqua County, New York

OverviewThe character of Chautauqua County is shaped by its varied terrain,economy, and demographics. Glaciation carved the basin for Lake Erieand the low-lying plains along its shores, but left behind ChautauquaLake and the more hilly topography inward from its shoreline. Inaddition to timber production , the county hosts a range of agricul-tural enterprises, including dairy, livestock, fruit, vegetable, and nurs-ery crop cultivation. Because it forms part of the eastern shore of LakeErie, the county also has several small-scale port facilities. It is conve-niently situated between the larger ports of Buffalo, New York, andErie, Pennsylvania. Chautauqua County is also located within a 500-mile radius of numerous U.S. and Canadian manufacturing hubs,including New York City, Syracuse, Toronto, Montreal, Pittsburgh,Philadelphia, Cleveland, Cincinnati, and Detroit. Manufacturingplants, mining and natural gas facilities, power plants, and textilemills operate in several communities in the county. Extensive rail serv-

ice (Norfolk Southern, CSX, and the Western New York and Pennsylvania Railroad)and access to highways (Interstates 86 and 90) support industrial operations.

The economy and demographics of Chautauqua County reflect a blend of ruraland urban influences. More than one-third of the land area is invested in agriculturalpursuits, and 16 percent of the local population is employed in those ventures. Morethan two-thirds of the population lives in urban settings, such as the industrial centersof Jamestown and Dunkirk. These residents are employed in nonagricultural indus-tries. In the 1920s, Chautauqua County’s workforce exceeded 17,000 in more than 463manufacturing facilities, including furniture assembly, textile production, locomotiveand military assembly, and metal foundries. Currently, the average personal incomeof wage earners is $18,793. The county has lost approximately 3,500 jobs and 200employers since the 1950s. Between 1990 and 1999, the local population decreased by4,500 residents.

As a result of this exodus of jobs and residents, efforts to develop ChautauquaCounty are now focused on the development of industrial parks and the reclamationand reuse of failed industrial and commercial facilities. State-funded Enterprise Zoneshave been created. They are designated geographic areas where special incentives areoffered to encourage economic development, business investment, and job creation.The zones allow for numerous property and sales tax exemptions and other benefitsfor economic development in Chautauqua County. Within these zones, poverty andunemployment rates reach 30 percent and 14 percent, respectively.

Chautauqua County,New York

Geography:Chautauqua County, the west-ernmost county in New York, isbordered to the northwest byLake Erie and to the south, bythe state of Pennsylvania.

Population:139,750

Area:1,069 square miles

Brownfields:45 sites


Today Chautauqua County wants to build onits agricultural and industrial past and maintainits rural character. The county is well known forthe historical Chautauqua Institution, which con-tinues to serve as a seasonal gathering place forprogressive, intellectual thinkers and visitors. Inaddition to the cleanup and redevelopment of idleand contaminated properties, the county hopes toreverse years of industrial decline by promotingeconomic development at existing and potentialindustrial parks. Finally, local officials see landuse controls as an essential part of their efforts toblend community and economic revitalizationwith environmental and public health protection.

Brownfields ProgramIn 1999, Chautauqua County partnered with theNew York State Department of EnvironmentalConservation (NYSDEC) to redevelop theChautauqua Worsted Mill/HBSA facility. Thisbrownfields redevelopment occurred through thestate voluntary cleanup program. The 100-year-old property, abandoned for more than fifteenyears, posed a significant threat to public health. Ithad become a haven for trespassing and other ille-gal or unsafe activities. Environmental concerns atthe site included underground pits containingtoluene-soaked rags and other solvents that hadleached into a storm sewer. Assessments alsoturned up asbestos and polychlorinatedbiphenyls. Redevelopment called for completedemolition and removal of on-site facilities. Inaddition to working with NYSDEC, the countycollaborated with the U.S. EnvironmentalProtection Agency (EPA), the county’s IndustrialDevelopment Agency, and the Village of Falconerto assess and clean up the site. It was redevelopedinto a 160,000 square foot industrial facility oper-ated by Dowcraft Corporation, a manufacturer ofmetal office furniture. The redevelopment projectalso created 100 new full time jobs in the county.Since 1997, Chautauqua County has acquired andredeveloped numerous tax delinquent commer-cial, industrial, and residential properties (includ-ing a manufacturing facility in a residential area),restored degraded riverfront areas into countyparks, and cleaned up a tire dump containingmore that 200,000 scrap tires. The tires were recy-

cled to be used as subgrade material in roadimprovement projects.

Currently, brownfields redevelopment activi-ties are overseen by the Department of PublicFacilities. They include forty five properties and

two New York State Empire Zones, the GreaterJamestown and the Dunkirk/Sheridan. Both ofthese zones were recognized as target areas in anEPA Brownfields Assessment Demonstration Pilotin 2001. The $200,000 grant was used to inventorypotential redevelopment sites, develop a proce-dure for evaluating and prioritizing such sites,conduct environmental site assessments, and per-form community outreach. Day-to-day activitiesare administered by a single program coordinator;these activities include an annual tax delinquentproperty review, environmental site assessmentsand cleanups, and state and federal grant applica-tions. Additionally, the program coordinator actsas the liaison for the county to all state andregional meetings related to the cleanup of brown-fields and other contaminated properties.

Redevelopment projects are selected by aprocess that identifies and inventories all poten-tial redevelopment sites. A preliminary assess-ment is made of challenges and opportunities.Selected sites undergo phase I and II environmen-tal site assessments and are then characterizedand planned according to potential end uses.Through county-wide surveys, press releases,Internet postings, public information meetings,fact sheets, and document repositories, the county

New Dowcraft Corporation Manufacturing Facility,Chautauqua County, NY.

Chapter 3: Profiles of Peer Exchange Communities 15

solicits community input in cleanup and redevel-opment activities.

Redevelopment InitiativesChautauqua County’s primary redevelopmentgoals are (1) to increase employment opportuni-ties through site remediation, redevelopment, andother activities and (2) to balance industrial devel-opment and environmental protection.Furthermore, the county is interested in usingland use controls to help it attain these goals.Properties that Chautauqua County is currentlytargeting for cleanup and redevelopment, possiblywith the application of LUCs, are listed below:

Welch FoodsWelch Foods and the National Grape Cooperativeoperated for more than a century at this sitebefore turning the facility over to ChautauquaForest Products in 1989. The facility was useduntil 1999 for storing and repairing equipmentand metal coating. In 1999, NYSDEC removednineteen barrels of hazardous waste, andChautauqua County acquired the property in 2000via tax foreclosure. Environmental assessmentsand a site investigation/remedial alternativesreport (SI/RAR) have been completed. Local offi-cials are now searching for funding sources and

interested redevel-opers. The site islocated in a mixedcommercial-resi-dential area andadjacent to a lightmanufacturingfacility. A service-related, light man-ufacturing end useis anticipated.

Roblin SteelPurchased byRoblin Steel in 1969,the site had beenoperated by theAmericanLocomotiveCompany from1900 to 1962 as alocomotive assem-bly facility. AfterRoblin Steel ceased operations in 1987, the site satidle until 1994, when EPA removed 700 drums ofhazardous waste and pollution emission controldust. In 2001, Chautauqua County obtained theproperty through tax foreclosure and has beenworking with privately commissioned profession-als to perform site assessments, apply for a NewYork State Bond Act Grant, and develop siteplans. Once the property is remediated, local offi-cials will consider a range of end uses, includinglight or heavy manufacturing, distribution andwarehousing, or a rail museum.

Ruckh MotorsA car dealershipand repair facilityoperated at theRuckh Motors sitefor nearly twentyyears. The propertyis owned now byPine Valley WoodProducts, but thecounty is consider-ing using tax foreclosure to acquire it. Preliminaryenvironmental assessments indicated the presence

Former Welch Foods site, Chautauqua, NY

Former Ruckh Motors site, Chautauqua,

Former Roblin Steel site, Chautauqua, NY

End-Use Characterization and Planning

After phase I and II environmental site assess-ments, the brownfields targeted for redevelop-ment in Chautauqua County, New York,undergo end-use characterization and plan-ning. etermines the best-fit cleanup and rede-velopment for a specific property. Followingare the steps in the end-use planning process:

• Develop and analyze remedial alternatives;

• Evaluate zoning and adjacent land uses;

• Evaluate existing infrastructure and utilityavailability;

• Solicit community input;

• Work with industrial development agenciesand interested developers; and

• Identify potential funding sources.


of numerous underground storage tanks (USTs) aswell as tires and other dumped materials. Thebuilding is in a poor structural condition. With theassistance of the New York State Department ofEnvironmental Correction, the county has alreadyremoved 1,300 tons of contaminated soil, and ithas removed numerous tanks and equipment con-taining hazardous and nonhazardous compounds(fuel tanks, septic tanks, and hydraulic lifts). Thesite is located in an agricultural-residential areanear Amish farms and communities. Local offi-cials have imagined end uses as an artisan centeror agricultural cooperative facility.

C&B Dry CleanersCarpenter and Bacot Dry Cleaners operated from1936 to 1999. Its property was acquired byChautauqua County in 2001 through tax foreclo-sure. Environmental assessments are still underway, but preliminary contamination concerns

include subsurfaceexposure to chlori-nated solvents(specifically per-clorethylene).Following asbestosabatement, countyofficials are plan-ning to demolishthe existing struc-tures onsite.

Located in an evolving commercial developmentarea, the site is being considered for retail, restau-rant, or other service-related end uses.

LUC Topics IdentifiedChautauqua County’s interest in land use controlsstems mainly from its desire to acquire redevelop-ment sites and to establish a legal means of pre-venting property reuses that will lead to sitecontamination. Peer Exchange participants identi-fied the following list of concerns:

• Deed restrictions relating to brownfieldscleanup and redevelopment

• Design and implementation of land use controls

• Long-term maintenance of land use controls

• Enforcement of land use controls

State Statutory AuthorityLand use controls are not mentioned by name inthe New York State Consolidated Laws, but theyare authorized under sections of Chapter 50 (RealProperty) of the Consolidated Laws. Specifically,Article 9, “Recording Instruments Affecting RealProperty,” Article 12, “Registering Title to RealProperty,” and Article 14, “Property ConditionDisclosure in the Sale of Residential RealProperty” contain clauses and language that out-line the recordation and implementation of con-veyances, covenants, easements, and liens, as wellas the role of the state in such actions.

Furthermore, Chapter 81 (Real PropertyActions and Proceedings) of the ConsolidatedLaws - specifically, Article 2, “General ProvisionsGoverning Real Property Actions,” and Article 20,“Enforcement of Covenants and Easements;Recovery of Damages for Breach of Covenant orInjury to Easement,” - describes provisions thatgovern the transfer of real property and relatedtitle and deed restrictions.

Although not authorized to do so by statestatute, the New York State Department ofEnvironmental Conservation administers a vol-untary cleanup program under departmental pol-icy (6 N.Y.C.R.R. Part 375, Subpart 375-4),adopted in 1994 and revised in 1997. The pro-gram’s cleanup standards are flexible, and theyrelate to American Society for Testing andMaterials standards for groundwater and surfacewater contamination. Typically, the remediationstandards, negotiated on a site-specific basis,depend on factors such as the amount and natureof the contaminants present, the potential for con-taminants to migrate into groundwater or surfacewater reserves, and the potential threat to humanhealth and the environment.

Former C&B Dry Cleaners, Chautauqua,


City of Louisville-Jefferson County, Kentucky

OverviewLouisville, Kentucky, a city on the banks of the Ohio River, has beenshaped by more than two centuries of history. At the time of its found-ing, Louisville was regarded as part of the “Inland Empire,” a growingnumber of cities that rivaled the eastern seaboard communities ofBaltimore, Boston, New York, and Philadelphia. Throughout the nine-teenth century, riverboat traffic and trade, as well as the PortlandCanal (built to bypass one of the sets of waterfalls on the Ohio River)established Louisville as a major commercial hub. Following the CivilWar, Louisville continued to grow in population. By the turn of thetwentieth century, it was one of the twenty largest cities in the countryand a leader in trade and manufacturing in the “New South” and theentire nation.

Like many American communities, Louisville experienced a boomera during World War II and then a steady decline in its industrial

base over the next half-century. The percentage of persons employed in industrial jobsin the city dropped from 40 percent in the 1960s to 20 percent by the 1980s. In addi-tion, distressed areas in Louisville’s urban-industrial core suffered a 20 percentdecrease in population; residents that remained in urban neighborhoods facedpoverty rates that exceeded 47 percent. Brownfields properties included former chem-ical, paint, fertilizer, metal plating, cigarette, and asphalt plants, as well as gas sta-tions, auto-repair facilities, and dry cleaners. However, a rise of service industriesincluding a UPS shipping hub and facilities at the University of Louisville creatednew employment and a movement toward reinvestment in downtown areas.

After receiving federal assistance in the 1990s to address urban blight throughbrownfields redevelopment in its disadvantaged communities, Louisville began toaggressively pursue new initiatives in economic revitalization and environmental pro-tection. Local, state, and federal officials worked together, and citizens were engagedthrough the preparation of the city’s Empowerment Zone application in 1996.Louisville was awarded an Enterprise Community designation.

Today, the Louisville-Jefferson County Metro Government plans to convert its idleindustrial properties by attracting innovative technologies and new and expandedbusiness enterprises. It plans to draw on the many cultural and historic resources thatmake the area a popular regional tourist destination as well as a good place to live.Louisville is the home of Churchill Downs and the Kentucky Derby. The LouisvilleSlugger baseball bat factory manufactures nearly all the bats used in Major Leaguebaseball. Implementation of a state voluntary cleanup program and proven successesin brownfields redevelopment are fostering coordination between local officials andstate government counterparts. Finally, brownfields practitioners seek to integrateland use controls into their efforts to blend environmental protection with economicdevelopment in revitalization efforts.

Brownfields ProgramThe city of Louisville began to pursue federal assistance for brownfields redevelop-ment in 1995. To support their application efforts, city officials convened theBrownfields Working Group, composed of public and private stakeholders (commer-

City of Louisville-JeffersonCounty, Kentucky

Geography:The merged Louisville-JeffersonCounty Metro area is located innorth-central Kentucky on theOhio River

Population:693,000

Area:385 square miles

Brownfields:Estimated 5,000 acres


cial and industrial realtors, community residents,bankers, local government officials, state regula-tors, universities, and special interest groups).

Later in 1995, the city of Louisville received a$200,000 Brownfields Assessment DemonstrationPilot grant from the U.S. EnvironmentalProtection Agency (EPA). It also was awarded thedesignation of Enterprise Community (EC) by the

U.S. Department of Housing and UrbanDevelopment. During the application process,community representatives identified the area offocus as eighteen of Louisville’s most disadvan-taged census tracts. The Brownfields WorkingGroup not only attracted resources for brown-fields redevelopment. It championed environmen-tal justice issues in the EC and throughoutmetropolitan Louisville. The group helped toadvocate for, and enact, the Kentucky VoluntaryEnvironmental Remediation Program in 2001 in

cooperation with state regulators, legislators, envi-ronmentalists, and the Kentucky League of Cities.

Because of strong stakeholder coordinationand resource leveraging, brownfields redevelop-ment in Louisville has been highly successful. Forexample, revitalization efforts at Papa John’sStadium and Waterfront Park revitalization proj-ects earned Phoenix Awards (in 1999 and 2002,respectively) at the National BrownfieldsConferences. Louisville Slugger Field, home of theLouisville Bats AAA baseball team, was includedin the Phoenix Award story as another brown-fields success. Slugger Field has provided anattractive sports and entertainment venue for thedowntown waterfront. Originally a rail transferstation, and most recently a farm implement com-pany, it incorporated the historic façade of therailroad building into the design of the jewel boxstadium. An urban Extreme Sports Park (forskateboarding, in-line skating, and bicycling) andfourteen soccer fields on a former landfill providepublic park spaces for youth and adults to enjoyathletic activities.

The former city of Louisville and JeffersonCounty consolidated government staff andresources in January 2003 to become theLouisville-Jefferson County Metro Government.Local officials are now attempting to build oninstitutional knowledge as they adapt to the newstructure. The Environmental Policy Office andthe Industrial Land Division of the MetropolitanDevelopment Authority now oversee brownfieldsredevelopment, with the assistance of a newentity, Louisville Metro Properties. TheEnvironmental Policy Office also provides staff tothe Brownfields Working Group, coordinates withstate officials to implement the voluntary cleanuplaw, and participates in other collaborative effortsof local and state governments. Recently,Cornerstone 2020, a new comprehensive plan forthe Metro area, was adopted. It includes a revisedland development code.

Redevelopment InitiativesThe Louisville-Jefferson County MetroGovernment’s redevelopment efforts are targetingindustrial and commercial properties in its down-town and industrial corridor areas, as well as

Louisville Extreme Park, Louisville, KY

Papa John’s Stadium, Louisville, KY

Profiles of Peer Exchange Communities 19

brownfields properties in or near old, residentialneighborhoods. In addition to creating jobs, bring-ing about community and economic revitalization,and protecting public health and the environment,brownfields practitioners hope to increase the par-ticipation of the private sector in land use plan-ning and redevelopment. The following listsummarizes current and future redevelopmentinitiatives in the metropolitan area:

Muhammad Ali CenterThe Ali Center site is located in downtownLouisville at 6th and River Road, near the river-front and Main Street revitalization area. The his-toric location of a foundry and rail yards, the sitemost recently has been home to a seafood restau-rant. A partnership with local government

resulted in government providing a parkinggarage and garden area for the center. Once com-pleted, the six-story center will include a boxingmuseum, peace education and conflict resolutionareas, and athletic complexes, all dedicated to thememory of Muhammad Ali, a world-championboxer and an advocate of peace, tolerance, andunderstanding among all people.

Trolley BarnLocated in the city’s Enterprise Community on thenear west side, the Trolley Barn has a long history.Its main building dates back to the nineteenth cen-tury when it served as a storage and repair facilityfor public transit vehicles (mule-drawn trolleysand later electric trolleys and buses). A more recentuse of the site was for a pesticide business. Thecity acquired the site through its Urban Renewalprogram. Several hot spots of PCBs were removedfrom the site, as were large quantities of lead paintfrom interior iron beams. Soils with elevated levelsof lead and other metals from the museum site areto be removed to an adjacent lot and capped forparking. The facility is to be leased for an African-American Heritage Center, including a museumand community center.

Currently, the Metro government is seekingfederal grant funding and other assistance toacquire sites, gain access to them, initiate Phase IIenvironmental assessments, and pursue redevel-opers who might be interested. Potential projectsinclude the following properties:

Muhammad Ali Center, Louisville, KY

Louisville Resources

Brownfields redevelopment in Louisville,Kentucky, before and after consolidation to theMetro government in 2003, has benefited fromlocal practitioners’ ability to solicit privatefunding and identify technical resources. Thefollowing list describes state and federalresources leveraged for brownfields activities:

• $200,000 U.S. Environmental ProtectionAgency (EPA) Brownfields AssessmentDemonstration Pilot. (1995)

• $75,000 to perform site assessments fromthe Commonwealth of Kentucky (1995)

• Designation as a U.S. Department ofHousing and Urban Development EnterpriseCommunity. (1996)

• $200,000 EPA Supplemental Funding Grant.(1998)

• $350,000 EPA Brownfields CleanupRevolving Loan Fund Pilot. (1998) Was sub-sequently increased to $500,000, but wasnever able to be utilized.

• $120,000 from 1995 to 1997 and another$120,000 from 1998 to 2000 for technicalassistance provided during two-year assignment of two EPA environmental engineers through the IntergovernmentalPersonnel Act.

• $350,000 EPA assessment grant for haz-ardous substances. (2003)


Rhodia, Inc.The Rhodia chemical facility is a 16.7-acre prop-erty located in the Enterprise Community in WestLouisville in an old area of light and heavy indus-try. In the 1950s, the local government situated afederally subsidized housing cluster across thestreet from the industrial site. The plant, in opera-tion from 1919 to 1993, manufactured chemicalsranging from paint and varnish to solvents andepoxys. The facility is considered the “Birthplaceof Epoxy.” After cleanup and redevelopment ofthe facility, local officials foresee industrial reusethat can bring new jobs, ancillary support jobs,needed tax revenue, and a bit of green space tothe neighborhood.

Philip MorrisIn 2002, the former Philip Morris cigarette manu-facturing plant, which closed in 1999, conveyed tothe Metro government eighteen acres in an other-wise robust commercial/industrial zone withinthe Enterprise Community. Phase I environmentalassessments have identified aboveground storagetanks that once contained corn syrup, glue andplasticizer, glycerin, and fuel oil - compoundsused in cigarette manufacturing. Additionally,local officials are aware of the presence of leadand asbestos in remaining buildings and PCBs inelectrical equipment and machinery.Redevelopment plans include the construction ofcommercial and industrial operations that willmatch existing operations in the area (retail storesand light manufacturing).

Exmet of KentuckyThe 3.3-acre Exmet facility is located in theEnterprise Community, East Louisville, adjacentto a CSX rail line and near a decommissionedmunicipal waste incinerator. Exmet of Kentuckyoperated for approximately one year as a handlerof fertilizer products. Cleanup focused on largeconcentrations of zinc oxide (4,000 tons) and cor-rosive solutions that included lead, cadmium,selenium, and mercury (12,000 gallons), as well astanks that were used to store sulphuric acid. TheState of Kentucky removed the chemicals anddemolished buildings on the site. Title to the sitewas encumbered by multiple liens, but it nowresides with Metro’s Land Bank Authority. Localofficials anticipate reusing the property for indus-trial activities that match existing operations inthe surrounding area.

Technology Park of Greater Louisville (formerNaval Ordnance Facility)Technology Park is a 142-acre urban industrialpark with about 1.5 million square feet of build-ings. The former Louisville Naval OrdnanceStation is located in the near South End of theMetro area. Title to the site is to be transferredfrom the U.S. Navy to the Louisville-JeffersonCounty Redevelopment Authority(Redevelopment Authority) imminently. The siteis currently under lease to the RedevelopmentAuthority, which was formed in 1996 to overseethe park and keep as many Navy operations andjobs in Louisville as possible through privatiza-tion. Upon transfer of the title to theRedevelopment Authority, the entire facility willbe under lease to Titan, a private developmentcompany selected to manage the redevelopmentof the site. The Redevelopment Authority spentmillions of dollars on remediating and renovatingbuildings for private use. The average buildingproject takes about a year. Remediation remains tobe done, and land use controls are needed. Thesite has prepared a Land Use ControlImplementation Plan, which the Commonwealthof Kentucky has accepted, although a correctivemeasures study is still under way.

Trolley Barn, Louisville, KY


LUCs Topics IdentifiedThe Louisville-Jefferson County MetroGovernment has significant experience workingwith land use controls in redevelopment efforts.They were used extensively in the cleanup andconstruction of Papa John’s Stadium, WaterfrontPark, and Louisville Slugger Field. For the sta-dium, the stadium itself caps a good deal of con-tamination left in place, and the asphalt parkinglot caps the remainder. Monitoring wells continueto operate on that site. At the park, contaminationwas covered with a geo-textile fabric and cappedwith up to 12 feet of clean soils. Portions of thepark are capped with a concrete plaza. The ball-field also acts as a cap to contamination left inplace, and its parking lot contains berms of lightlycontaminated soils covered with asphalt.

As benefits of the recently enacted voluntarycleanup program are realized, local officialsbelieve LUCs will be essential to future, statewideredevelopment efforts. Nonetheless, local govern-ment officials are concerned about communicationand coordination issues that transcend the juris-dictional lines of the local, state, and federal levelsof government. Local and state officials are alsoconcerned about the ability to develop and main-tain (and transfer dated information into) asophisticated LUC recording and tracking system.Additionally, Peer Exchange participants identi-fied the following list of concerns:

• Intergovernmental communication and coordi-nation across jurisdictional lines

• Bridging local planning and real estate authoritywith state and federal regulatory statutes

• Land use planning and zoning requirements instate of Kentucky

• Design and implementation

• Long-term maintenance

• Funding

• Enforcement

• Tracking and data management

State Statutory AuthorityKentucky is a common law, race-notice state withrespect to real property law.

Chapter 100 of the Kentucky Revised Statutes,enacted 1931, provides enabling authority forlocal zoning.

Since 1980, Kentucky law (KRS 224.01-400)has provided for risk-based corrective action aspart of emergency response legislation.Historically, the Kentucky Department ofEnvironmental Protection has historically usedrestrictive covenants and various forms of deednotification in connection with risk-basedcleanups where residual contamination remainedon-site.

The Kentucky Voluntary EnvironmentalRemediation Act (VERA), enacted in 2001, cre-ated a voluntary cleanup program, but the pro-gram has yet to be implemented. All of therequired regulations have not been completed bythe Kentucky Natural Resources andEnvironmental Protection Cabinet. VERA doesnot specifically mention land use controls.Additional legislation may be required to provideauthority to the Cabinet to design, implement,and oversee such controls.

Chapter 4

The Chautauqua County andLouisville-Jefferson County PeerExchangeOverviewThe Chautauqua County and City of Louisville-Jefferson County Peer Exchangematched representatives from both communities who were interested in incorporatingland use controls (LUCs) into local strategies to redevelop brownfields. Both commu-nities were selected because of their existing brownfields program, general knowledgeof LUCs, and potential for community and economic revitalization. By matching par-ticipants who worked at the county government level, the ICMA Research Teamhoped to promote discussions of peers with similar perspectives. At the same time,the differences between the two communities (for example, rural and urban character-istics, demographics) were viewed as opportunities to establish meaningful exchangesby local government officials and stakeholders facing similar issues.

Chautauqua County is in a rural region of western New York on the shore of LakeErie. Although located within several hundred miles of major port cities in the UnitedStates and Canada, the county is part of the Appalachian Region. It has a rural profilewith several industrial centers. Operating with very limited financial and staffresources, Chautauqua County’s brownfields program has partnered effectively withstate and federal agencies to redevelop several sites. The properties were acquiredthrough tax foreclosure. In a program with limited funding and institutional knowl-edge, participants were interested in how LUCs could benefit foreclosure and redevel-opment strategies.

The city of Louisville and Jefferson County encompass one of the major metropoli-tan areas in the Commonwealth of Kentucky. Linked to the Ohio River, the city andcounty want to incorporate the expansive waterfront and historic buildings and dis-tricts into downtown revitalization plans. Encouraged by proven successes in usingLUCs on several large commercial projects, such as a college football stadium complex,local officials sought a formal strategy and program for using land use controls inbrownfields redevelopment. They also were interested in discussing how to improvecoordination among stakeholders, especially state and federal government officials.

In Chautauqua County and Louisville-Jefferson County, both local governmentsare engaging in a unique and proactive approach to property redevelopment andLUC design, implementation, and management. Through their own voluntary efforts,and with a full understanding of financial and liability concerns, these local govern-ments in many cases were acquiring or redeveloping (or helping redevelop) proper-ties. Accordingly, both communities were interested in learning about the roles thatland use controls could play in the process to ease their own concerns surroundingcleanup and redevelopment and to attract investors and developers to local revitaliza-tion initiatives. While other local governments may not be in the same position as the


local governments of Chautauqua County andLouisville-Jefferson County with regard to the useof LUCs, the cleanup and redevelopment ofbrownfields and other contaminated propertiesremains a viable strategy for revitalizing commu-nities. By understanding the valuable role thatland use controls can play, all local governmentscan improve property redevelopment options andthe community, economic, and environmentalquality of life in their jurisdictions.

Participants in the Peer Exchange in May,2003, included local government representativesfrom Chautauqua County, New York, Louisville-Jefferson County, Kentucky, and Phoenix, Arizona,(brought in as an expert to share information withChautauqua County and Louisville-JeffersonCounty), as well as state representatives from theCommonwealth of Kentucky and public and pri-vate sector participants with significant experi-ence in designing, implementing, and maintainingland use controls. The following list provides thename and affiliations of all participants:

• Bonnie Biemer, Environmental Policy Office,Louisville-Jefferson County Metro Government

• Fred Nett, Environmental Policy Office,Louisville-Jefferson County Metro Government

• Mike Kmetz, Environmental Policy Office,Louisville-Jefferson County Metro Government

• Bruce Seigle, Municipal Sewer District,Louisville-Jefferson County Metro Government

• Ted Sauer, Louisville-Jefferson CountyRedevelopment Authority

• Mike Ballard, Louisville-Jefferson CountyRedevelopment Authority

• Anthony Hatton, Kentucky Department ofEnvironmental Protection, Division of WasteManagement

• Cheryl Ruth, Department of Public Facilities,Chautauqua County

• Donn Stoltzfus, Office of EnvironmentalPrograms, City of Phoenix

• Michael Sowinski, Environmental InformationSystems, DPRA Inc.

• Joseph Schilling, Community and EconomicDevelopment Program, ICMA

• Thomas Groeneveld, Brownfields Program,ICMA

In response to the specific concerns of PeerExchange participants, the ICMA Research Teamorganized discussions on the land use controlthemes discussed in Chapter 2:

Design and implementation;

Stakeholder coordination;

Information management;

Enforcement; and

Funding.

Synopses of those discussions, including the ques-tions addressed, comments offered by partici-pants, and ideas for next steps are presented inthis chapter.

Design and ImplementationDesigning and implementing effective land usecontrols can be a daunting challenge for local gov-ernments. Crafting legal terminology and proto-cols, anticipating future risks and land usechanges, and comprehending complex scientificprinciples related to contamination measurementand dispersal are only a few of the issues thatcomplicate the process. In addition to variousdesign alternatives, local governments must con-sider the durability of LUCs in order to ensurethat human health and the environment will beprotected in the future. The long-term effective-ness of LUCs is contingent upon two critical fac-tors. The first is the physical maintenance of allimplemented controls. Local governments mustmonitor and maintain the integrity of the physicalbarriers put in place to protect the public fromresidual contamination. The second factor is theinstitutional maintenance of land use controls.Local officials need to consider the overall struc-ture and performance of their staff and operatingprocedures so that the location and nature ofLUCs are recorded and communicated. Officialsalso need to establish points of contact for notifi-cation if a control is breached.

Peer Exchange participants covered many ofthese issues in their discussion of the design andimplementation of land use controls. Local gov-ernmental officials considered two key questions:


• What are the fundamentals of crafting effectiveland use controls?

• How can strategies be developed that ensurethe long-term feasibility and flexibility of landuse controls?

In answering these questions, Peer Exchange par-ticipants discussed the fundamentals of the designand implementation of LUCs, how to select anddesign the right controls, and ways to make landuse controls more attractive to hesitant electedofficials and property developers.

Fundamentals of Design andImplementationThe fundamentals of designing and implementingeffective land use controls are likely to elicit dif-fering opinions among stakeholders. For example,common issues of debate include who needs to beinvolved in the design and implementationprocess, when those stakeholders need to beinvolved, who will monitor and enforce the con-trols, and how funding resources will be raisedand perpetuated to ensure long-term mainte-nance. In addition to these considerations (dis-cussed in detail later in this chapter), PeerExchange participants identified seven fundamen-tals that all local governments, as potential regu-lating authorities or implementing parties of suchcontrols, should understand:8

Basis of legal authority: Local officials must befamiliar with state and federal statutes governingLUCs before designing them. This will helpensure that local controls comply with the lawand are viable. By investigating relevant state andfederal policies, officials gain an awareness ofexamples of legal language and structure thatapply to LUC design and implementation.

Transferability: Land use controls must bedesigned to “run with the land” to ensure thatfuture property owners, operators, or residentsare beholden to land use restrictions. Those who

design and implement LUCs should establish thetransferability of liability as well as responsibilityfor maintaining controls.

Resources: Consideration of the funding andstaff resources required to implement and main-tain LUCs well into the future is another criticalfactor in the initial design of controls. Anticipatingthe future availability of revenue and staffing - orthe need to develop means to increase either com-ponent - is important. By thinking through theseissues, local officials can better determine whatcontrols are most appropriate or whether LUCswill be feasible at all. Comparing the “life-cycle”costs of implementing and maintaining LUCs(running in perpetuity or for a designated timeperiod), to the costs of cleaning a site to unre-stricted use standards is an essential yet oftenoverlooked step. The goal is to project the futurefunding requirements LUCs may impose on localgovernments.

Standard measurements: Recognizing theappropriate standards to determine “safe” levelsof residual contamination, as well as the extent towhich controls should create buffers to protecthuman health and the environment, may be themost important responsibility of local govern-ments, regardless of their specific role (regulator,property owner, or redeveloper). Local officialsmust understand the specific details and largerimplications of human health and environmentalstandards upheld by LUCs. Most standards aretypically preset by state and federal statutes, andthey are based on standards for remediation ofsoil, groundwater, and surface water contamina-tion published by the American Society of Testingand Materials.

Risks: When designing LUCs, local govern-ments must consider (a) the risks to human healthand the environment posed by the site and (b) thespecific risk to be mitigated by controls. The for-mer refers to the environmental and public healthrisks that could occur if a LUC fails; the latterrefers to how to address the specific source andexposure pathways of such risks and what mecha-nism will best mitigate against potential harm.Because they are inherently linked, both consider-ations are important in the design and implemen-tation of effective land use controls.

8 In many cases, local governments are not party to the selectionand design of land use controls because those decisions are oftenmade by property owners and state regulators. However, as localgovernments take on enforcement roles or acquire properties them-selves to facilitate redevelopment, they will benefit from a familiar-ity with the general principles of LUC design and implementation.


Using existing tools: Particularly in communi-ties facing economic hardships, local officials mustmaximize (or innovate new uses of) existing legalmechanisms, hardware and software infrastruc-ture, and staff expertise when designing andimplementing land use controls. Although thelegal language and structure of actual LUCs maynot leave room for creative approaches, the abilityto stretch municipal resources or synthesize exist-ing programs to meet new LUCs-related chal-lenges may require innovative solutions.

Defining the scope of notice: “Who needs toknow?” and “How much do they need to know?”The answers to these common questions affect thelevel of access to potentially sensitive environ-mental and legal information. When designingand implementing land use controls, and overallmaintenance plans and programs, local officialsmust consider the level of access available to per-sons inside and outside of government, as well ashow that information will be managed.

How to Select and Design the ControlsSelecting the controls that are best suited to docu-ment the residual contamination and use restric-tions at a given property will ultimatelydetermine the effectiveness of the controls them-selves, as well as the feasibility of incorporatingLUCs into comprehensive cleanup and redevelop-ment strategies. Land use controls not only mustbe suited to the needs of the current propertyowner, they must be suited also to the anticipateduse of the property after cleanup and redevelop-ment. The right combination of controls meanscreating reasonable controls that are best-suited toencourage redevelopment while safeguardingpublic health and the environment. Additionally,by implementing multiple LUCs or “layering”LUCs, local governments can create overlap andredundancy in the mechanisms that help to pre-vent exposure to contaminants.

Types of ControlsFollowing are different kinds of LUCs (discussedin Chapter 2) for local governments to consider inthe cleanup and redevelopment process:

• Private/proprietary controls: Based in real prop-erty law, these LUCs can include legal mecha-

nisms, such as easements and covenants, placedin the chain of title to a property.

• Public/governmental controls: Usually imple-mented and enforced by a state or local govern-ment, these LUCs can include zoningrestrictions, ordinances, statutes, building per-mits, or other provisions that restrict land orresource use at a property.

• Enforceable agreements: Restrictive agreementsthat are binding on signatories but do not trans-fer with a property transaction.

Advantages of Blending Public and PrivateControlsPeer Exchange participants agreed that blendingpublic and private controls creates an ideal imple-mentation scenario. From the private standpoint,property owners and operators are empowered bytheir voluntary commitment to monitor and main-tain LUCs. From the public standpoint, an unbi-ased institution is charged with monitoringactivities as well as deciding the necessary courseof action should the private parties fail to upholdtheir responsibilities. The following hypotheticalcase illustrates such a public-private LUCarrangement:

A private property owner agrees to constructand maintain an engineered cap. He prevents on-site digging in specified areas, and hydrates thecap to ensure its long-term viability. He alsorecords data from various monitoring stationswithin the cap. A local public works department ischarged with the responsibility of recording theLUC, performing regular inspections of the prop-erty, the cap, and activities related to subsequentredevelopment. In addition, the public worksdepartment monitors applications for permits andvariances that apply to the property to ensure thatany controls are not affected by future activities.The public entity is required to notify appropriateauthorities (typically of a higher jurisdiction, suchas state or federal environmental regulators) if theLUC is compromised and results in a threat topublic health and the environment, requiring animmediate cleanup or enforcement action.

The key to this approach is coordinationamong appropriate public and private stakehold-ers early on and throughout the design, imple-


mentation, and maintenance process. Finally, byestablishing relationships with state and federalregulators, and understanding the statutoryrequirements that govern local land use, haz-ardous waste cleanup and containment, environ-mental remediation, and real propertyredevelopment, local decision makers will bemore likely to select the best-suited land use con-trols at any given property.

How to Design More AttractiveControlsCreating interest in redeveloping properties withreal or perceived contamination is challenging;attempting to revitalize properties with knownresidual contamination requires an entirely differ-ent set of liability, political, and safety considera-

tions. To address the liability concerns of potentialdevelopers and investors, and to win support fromother elected and appointed officials and the gen-eral public, local governments must market landuse controls as a positive way to streamline thecleanup and redevelopment of contaminated prop-erties. Redevelopment practitioners should weighthe long-term costs of maintaining LUCs againstthe expenses required to clean properties to unre-stricted use standards. Another hurdle can beworking with property owners who do not wantto sign a permanent recordation of on-site contam-ination due to concerns about future liabilities.

Following Voluntary Cleanup ProgramsPeer Exchange participants agreed that state vol-untary cleanup programs (VCPs) provide anexcellent starting point for the negotiation of landtransactions complicated by particularly challeng-ing environmental considerations. In most cases,VCPs create liability assurances and financialincentives for property owners who are notresponsible for on-site contamination after speci-fied remediation requirements are met. Land usecontrols are often part of voluntary cleanupactions and may be recorded in state documentsand covenants (including No Further Action let-ters, Certificates of Completion, and Covenantsnot to Sue). Redevelopment practitioners, if theyare familiar with state VCP programs may be ableto steer interested and reluctant property ownerstoward such options. In other cases, local officialsmay be able to work with VCP administratorswhen the program is being designed, imple-mented, or modified. For example, the Louisville-Jefferson County Brownfields Committee workedclosely with the Natural Resources andEnvironmental Protection Cabinet (NREPC) andother regulatory agencies to develop and helpimplement the Voluntary EnvironmentalRemediation Act, which established the voluntarycleanup program in the Commonwealth ofKentucky. In theory, local-state collaboration couldtranslate to LUCs so that liability assurances andfinancial incentives to all potentially involved par-ties are upheld.

Guiding Reuse with Land UseControls

Peer Exchange participants discussed the pos-sibility of creating land use controls that wouldprevent property reuse that might produceenvironmental contamination — the very rea-son environmental remediation and land userestrictions were imposed in the first place.Participants engaged in a lively discussion ofthe positive and negative ramifications of apolicy (designated “zoning by covenant”) thatwould dictate private property reuse.Participants acknowledged the benefits of anapproach that could decrease the potential for“re-contamination” of a remediated and rede-veloped property. They objected, however, toan approach that seemingly prejudged apotential property developer or operatoraccording to zoning categories. In other words,the suspicion that an industrial operator ismore likely to create contamination on a prop-erty - by nature of site operations and materi-als used - than another type of operator couldbe described as a biased opinion. Participantsalso discussed that while “zoning bycovenant” practices are acceptable in private-to-private land transactions and agreements,they would not be included in the existingspectrum of LUCs. These issues fall under thejurisdiction of real property law as establishedin a particular state or territory.


Increasing the Marketability of LUCsParticipants discussed ways to make land usecontrols more palatable to private and public sec-tor representatives who may normally steer clearof legal and political thickets. Some participantssuggested softening terms such as “restriction” or“control” in favor of “opportunities” or “agree-ments.” By whatever means (increased communi-cation, simple explanations of LUCs andrevitalization initiatives, or increased stakeholderinvolvement and coordination), local officialsshould market the cleanup and redevelopmentprocess in an open and positive light to gainmomentum and achieve success.

Stakeholder CoordinationStakeholders in cleaning up and redevelopingbrownfields have differing interests, agendas, andideologies. Local, state, regional, and federal agen-cies, as well as private sector development andlending corporations, special interest organiza-tions, community groups, and the general publiccomprise the cast of players. All of these stake-holders have vested (and often conflicting) inter-ests in the community. If they make compromisesduring the negotiation process, a strategy tailoredto satisfy the entire community can be workedout. Efforts to derive a system for designing,implementing, and maintaining land use controlsmust meld the interests of all contributing stake-holders or at least culminate in the most represen-tative course of action. Stakeholder coordinationalso decreases single-minded approaches andidentifies gaps where redevelopment practitionerscan work together to solve problems in a proac-tive manner.

Redevelopment practitioners must considerthese questions related to coordination of stake-holders:

• Who needs to be included in the design, imple-mentation, and long-term maintenance of landuse controls?

• How can stakeholders be brought together toaccomplish those goals?

• What is necessary to establish a long term LUCstrategy versus day-to-day responsibilities?

In response to these questions, Peer Exchangeparticipants discussed lateral coordination of localgovernment partners, vertical coordinationbetween local, state, and federal government part-ners, and the involvement of the private sectorand general public in the design, implementation,and maintenance of land use controls.

Lateral CoordinationLateral coordination refers to intragovernmentalcoordination: local government departmentswork together to achieve consensus-based man-agement. The design, implementation, and main-tenance of land use controls, like other initiatives,present opportunities for collaboration by depart-

Voluntary Cleanup Programs

Voluntary cleanup programs (VCPs) allow vol-untary parties, such as site owners or develop-ers, to approach state governments and initiateenvironmental cleanups on their own. Theseprograms are cooperative in nature. They pro-vide incentives to voluntary parties rather thanrely on enforcement orders to accomplish reme-diation.

Incentives to participate differ from state tostate, but VCPs have a number of common fea-tures. Incentives typically include conditionalexemptions from future state liability at a prop-erty, streamlined investigation and cleanupprocedures, more expedient and economicalcleanup alternatives, and more realisticcleanup goals. Additionally, land use controlscan be implemented (or may be required) aspart of remediation plans, records of decision,and state-endorsed liability assurances.

The assurances are often issued as a NoFurther Action certificate or Certificates ofCompletion. They acknowledge that contami-nated properties have been treated to levelsconsistent with VCP standards-usually basedon the future uses of that particular site. Inother cases, legal contracts in the forms ofCovenants Not to Sue are issued to protect siteowners and developers against future liabili-ties should unanticipated environmental haz-ards be discovered.


ments of local government. Because of their envi-ronmental, public health, and liability ramifica-tions, land use controls can be intimidating andcontroversial components of local land use andrevitalization efforts. On the other hand, LUCspresent innovative means to put idle propertiesback into productive use while protecting publichealth and the environment — objectives of everylocal government.

Communicating in Local DepartmentsPeer Exchange participants acknowledged theneed for effective communication across local gov-ernment departments for everyday operations andespecially when tackling new programs and ini-tiatives, such as land use controls. The first step inthis process is convening the appropriate mem-bers of various departments. In addition toBrownfields Program staff (or those involved inbrownfields issues in the absence of a formal pro-gram), Peer Exchange participants suggestedinviting members of the Planning, Permitting andInspecting, Recording, Public Works, WasteRemoval, Economic Development, andRedevelopment departments and authorities.Involving representatives from these local depart-ments and possibly others at the beginning ofLUC planning can be a means of soliciting valu-able feedback on how to design appropriate con-trols as well as implement and maintain them. Ifnecessary, task forces like the Louisville-JeffersonCounty Brownfields Working Group can be cre-ated to discuss and weigh such decisions. Theability to harness creative tension among agencieswith different stances can go a long way towarddeveloping land use controls that reflect the goalsof the local government as a whole. Participantsalso stressed that internal outreach efforts can takethe pressure off of a single department or (in thecase of small local governments like ChautauquaCounty) a single staff member who may be inves-tigating the implementation of LUCs in revitaliza-tion efforts. Teleconferencing, Web casts, andmeetings facilitated by professionals can fostermeaningful dialogue among local governmentstakeholders.

Soliciting EndorsementSoliciting endorsement for incorporating LUCsinto revitalization initiatives requires the samecoordinated efforts as good internal communica-tions. Often elected and appointed officials andother local government decision makers are skep-tical of land use controls because of assumed lia-bility, human health, and environmental risks. Theability to effectively communicate the financialand logistical advantages of LUCs helps to createbuy-in from pivotal local government authorities.Peer Exchange participants stressed that all mate-rials and communications must be concise, spe-cific, and easily understood. Abstract conceptualmodels of long-term plans work less well. In addi-tion, participants suggested that finding a “pilot”project property or examples of successes fromother communities can help to sway the opinionof reluctant decision makers. Such a pilot shouldbe one that can be successfully remediated andredeveloped using land use controls. Both

Chautauqua County and Louisville-JeffersonCounty have realized redevelopment successes intheir communities with pilot projects. Examplesinclude the Chautauqua Worsted Mill/HBSAfacility (which required extensive coordinationwith the New York State Department ofEnvironmental Conservation) and Papa John’sLouisville Cardinal Stadium (which included sub-stantial use of LUCs). Local officials must capital-ize on pilot projects to capture momentum for theimplementation of land use controls and largerrevitalization goals.

Former Chautauqua Worsted Mill/HBSA Facility, Falconer, NY.


ulators and environmental enforcement authori-ties at the state and federal levels. Moreover, it isimproves the likelihood of continued collabora-tion if breaches or inconsistencies in land usesarise in the future. By researching state and fed-eral regulations, stakeholders can open the doorto funding and technical assistance opportunities.

Peer Exchange participants suggested invitingstate officials to participate in LUC task forces. Inthis case, state environmental regulators, stateattorneys, natural resource authorities, and eco-nomic development agencies would be coordinat-ing their efforts. In Chautauqua County, localofficials communicate with specific site managerswho answer to NYSDEC regarding land use,cleanup, and redevelopment decisions.Incorporating these and other means of coordina-tion during planning and implementation cancontribute to effective land use controls.

Participants also stressed that providing spe-cific feedback to state authorities on existing poli-cies and procedures can enhance LUC design andimplementation efforts. In rural ChautauquaCounty, face-to-face meetings with state officialsand written correspondence with them providevaluable opportunities to educate these officialsabout local concerns. Effective lobbying can leadto the revision of state policies governing assess-ment and reporting requirements. In fact, stan-dardized forms for environmental assessment andreporting forms to include land use controls couldbe modified to include land use controls. This, inturn, could enhance local and state efforts to

LUCs as a Catalyst for Redevelopment Success

Papa John’s Louisville Cardinal Stadium at the University of Louisville stands atop what was a ninety-two-acre railroad yard. The railyard presented many environmental and financial obstacles to large-scale redevelopment. Instead of removing several million gallons of diesel fuel and other suspendedpetroleum products in the soil, Louisville-Jefferson County officials chose to tackle those challenges bydesigning and implementing land use controls. The stadium itself caps a good deal of contaminationleft in place by the railyards, and the asphalt parking lot caps the remainder. Monitoring wells continueto operate on that site.

In addition to creating a catalyst for redevelopment success (producing millions of dollars in annualrevenues for the university and the city), the project provided jobs, a home for football administrationand practice facilities, and an entertainment venue for students and residents. It gave alumni and thecommunity a sense of pride in what before was only a brownfields property. The project earnednational recognition in 1999 with a Phoenix Award at the National Brownfields Conference.

Managing Program TasksCoordination is essential not only for establishingstrategies to implement land use controls but alsofor managing the day-to-day activities required tomaintain them. Peer Exchange participantsacknowledged the importance of involving appro-priate staff members in the earliest phases ofdesign and implementation involving LUCs.Additionally, the general education required tomake others aware of how LUCs will be recordedand tracked, what new hardware and softwaremay be used, and what local staff should do whenconfronted with a procedure, such as a permitapplication, for example, for a property subject toland use controls, must be coordinated to ensureeffective management of LUCs.

Vertical CoordinationAs noted earlier, the coordination of stakeholderscan be lateral (intergovernmental coordination).Vertical coordination refers to the collaborativeefforts of state and federal counterparts (the regu-latory experts and compliance and enforcementofficials) to ensure that land use controls complywith governing statutes and established enforce-ment procedures. By engaging state and federalofficials or modeling LUC documents and pro-grams after existing legislation, redevelopmentpractitioners can prevent legal discrepancies thatwould require future modification. Vertical coor-dination enhances the establishment of LUCauthority in local jurisdictions. It also can help toestablish relationships between local land use reg-


inventory properties that carry LUCs or could betargeted to include LUCs. Finally, participantsagreed that federal leverage could be used if local-state conversations lapsed or negotiations reachedan impasse. With increased emphasis on LUCs aspart of remedy selections - stemming from CER-CLA and bolstered by funding provisions in theBrownfields Law - federal agencies have newopportunities to collaborate with state employeesand local officials.

Coordination of NongovernmentalStakeholdersPrivate sector entities and the general public, inaddition to governmental agencies, can promotethe use of LUCs in community revitalizationefforts. Although these partners are not essentialto designing, implementing, and maintaining landuse controls, insights gleaned from nongovern-mental stakeholders can create benefits in theenforcement and funding of LUCs and reducemisperceptions of the cleanup and revitalizationprocess. For example, many community membersmay see the implementation of land use controlsas risky and even exoneration for parties whocaused or contributed to environmental contami-nation. By effectively reaching out to communitymembers and communicating both the risks andadvantages to their use in the redevelopment

process, local practitioners are able to accomplishcommunity, economic, and environmental revital-ization goals.

By including nongovernmental stakeholderswhen designing and implementing land use con-trols, local officials can better gauge communityviews about the redevelopment of brownfieldsand other contaminated properties. The participa-tion of business leaders, developers, and commu-nity groups in task forces was seen as one meansof accomplishing input and buy-in. Peer Exchangeparticipants also suggested that community meet-ings can be organized to explain how LUCs willwork and to solicit feedback on how such mecha-nisms will be received by the public. These kindsof outreach efforts not only spark interest in rede-veloping brownfields and other contaminatedproperties. They also present opportunities fordiscussion of ways to fund LUCs and tailor themto the needs of developers and communityaffected by their implementation. For example,input from citizens about redevelopment influ-enced the design of the Grand Lawn for the river-front park and Extreme Sports park inLouisville-Jefferson County. Peer Exchange partic-ipants anticipated that similar benefits could beattained from community-wide discussions ofwhere and how LUCs could be implemented.

Finding a Program Champion

An invaluable asset to revitalization initiatives, (including the design, implementation, maintenance ofland use controls), is a staff member or noteworthy citizen who can coordinate stakeholders and createenthusiasm for brownfields redevelopment throughout the community. Such a person is often referred toas a program champion. He or she assembles the necessary components of community revitalization anddelegates responsibilities to appropriate stakeholders. As a result, efforts to incorporate LUCs into revi-talization initiatives draw upon the support of the community, which gains ownership of the project.

A program champion who coordinates the multiple aspects of redevelopment (cleanup, publichealth, infrastructure, education, community and economic development, and LUC design, implementa-tion, and maintenance) is able to realize better results than someone who assumes coordination willhappen on its own. Local agencies and groups have different expertise and different resources to share.Coordination requires effective communication and logistical planning. In addition to organizationalskills, the program champion must possess the personal qualities of a leader to whom others can lookfor inspiration in achieving the goals of community redevelopment and maintenance of land use con-trols over time. He or she must be able to rally support for the program’s overall vision and maintain themorale of redevelopment stakeholders. Federal, state, regional, and local revitalization programs withthe greatest success often point to one individual or a small group of individuals who champion andcoordinate efforts.


Educating the PublicCommunity members needed to understand

what land use controls are in place in their com-munity and why they are in place. Meetings withnongovernmental stakeholders can create a gen-eral awareness of how land use controls operateand the reasons they must be adhered to on adaily basis. Massachusetts statutes, for example,require that information about Activity and UseLimitations be made available to local officials(including the Chief Municipal Officer, the Boardof Health, and Zoning and Building Inspectionofficials) and the general public within thirty daysof issuance.9 Postings at restricted properties canaccomplish this, but information also can be madeavailable to concerned citizens through theInternet, through queries to local government offi-cials, and in other ways. For example, Louisville-Jefferson County uses the “Before You Dig”

program to provide community members with ahotline to contact before excavating.

Peer Exchange participants discussed thesenumerous methods of educating nongovernmen-tal stakeholders about land use controls.Community outreach efforts also can empowercommunity members to informally monitor activi-ties at restricted properties in their midst and toreport suspicious activities and violations toproper authorities. A guidance issued by theDepartment of Environmental Protection (DEP) inthe Commonwealth of Massachusetts recom-mends implementation and management strate-gies, agreements, and documentation forproperties subject to LUCs. Although not requiredto do so by the Massachusetts Contingency Plan,property managers and DEP (on sites that are pri-vately monitored) are urged to enter into a con-tract that describes the nature and location of

Developing a Land Use Control Implementation Plan

Land use controls (LUCs) are a growing component of contaminated site cleanups in the United States.Because the cleanup of brownfields and Superfund sites to the level of unrestricted use is rare, controlsensure that future land uses remain consistent with residual contamination levels. The roles andresponsibilities for implementing LUCs are documented in a land use control implementation plan(LUCIPs). These plans help to facilitate communication between parties involved in the long-term stew-ardship of a property or a collection of properties.

Specifically, a LUCIP serves as a bridge between state environmental regulations and local land usepolicies and practices. The LUCIP formalizes the jurisdictional scope, legal authority, and roles andresponsibilities of the local government, state government, and other stakeholders in the long-termimplementation and management of land use controls. It also establishes accountability among all par-ties consenting to the plan. By helping to achieve these objectives, a land use control implementationplan:

• Protects human health and the environment by minimizing exposure risks;

• Protects cleanup remedies and engineering controls; and

• Promotes economic development and community revitalization by ensuring the protectiveness ofLUCs at contaminated properties.

• The LUCIP also has other functions. It can:

• Delineate a property’s land use controls, including their planned duration, factors that could triggermodifications, and notification requirements;

• Identify roles and responsibilities for implementing, monitoring, reporting, and overseeing land usecontrols;

• Estimate the life-cycle costs and clarifies cost considerations;

• Define communication strategies and protocols among parties to the LUCIP;

• Establish approaches for data management; and

• Involve community members, beyond those with maintenance, monitoring, reporting, or oversightroles.


controls, how to maintain them, and how to pro-vide adequate protection for employees and main-tenance workers at the site.10 Although ultimateresponsibility for enforcement and notification isheld by local governments - and state and federalpartners - engaging the public to assist in the LUCmonitoring process can improve local coordina-tion and enforcement capabilities.

Information ManagementAn essential factor in ensuring the long-termeffectiveness of land use controls is informationmanagement. Information must be recorded andtracked regarding (1) where controls are imple-mented geographically, (2) what contaminantsthat are present, and (3) what activities arerestricted by the controls. Organizing a systemthat can readily disseminate this information tothe right staff members and other authorities on aday-to-day basis (or in the case of a breach is

vitally important. At the same time, local govern-ments must balance the need to fulfill publicinformation obligations need regarding LUCs-related data and information and the need to pro-tect the privacy of parties beholden to controls.Finally, with geographic information systems(GIS) and other emerging technologies, local gov-ernments have the means to geographically iden-tify and graphically record and map land usecontrols. This may require additional staff expert-ise and training, however, as well as the purchaseof new hardware and software or the modificationof existing systems.

Local government officials, as they considerhow to record, track, and manage informationrelated to land use controls, must consider the fol-lowing questions:

• What technologies and approaches are availableto record, track, and share LUC information toensure long-term maintenance and usability ofinformation?

• What existing and emerging technologies canenhance the process?

• How can those approaches and technologies bepurchased or adapted by local governments tofit their needs?

In answering these questions, Peer Exchange par-ticipants discussed strategies for recording andtracking land use controls, developing and main-taining databases, incorporating mapping tech-nologies, and providing staff education andtraining to effectively manage such information.

Recording and Tracking ControlsLand use controls, if they are not recorded andtracked, will not be viable in the long term. Unlessproperly maintained, the controls can figurativelyand literally end up in a file cabinet. In addition tomaking sure that the controls are recorded prop-erly and kept in the appropriate local governmentoffice (often the County Clerk or Recorder), localofficials must track LUCs through various proce-dures and transactions (for example, the issuanceof permits, title and deed transfers). By develop-ing checks for LUCs when processing and review-ing land use-related applications, localgovernments can ensure that restrictions on prop-

9 Massachusetts Contingency Plan {310 CMR 40.1403 (7) (a)}.

10 Massachusetts Department of Environmental ProtectionGuidance on Implementing Activity and Use Limitations {WSC 99-300, § 6.6}

Stakeholder Coordination: First Steps

• Organize stakeholder meetings

• Designate committees and task forces

• Frame arguments effectively, using simpleterminology and concepts rather thanabstract ideals

• Emphasize more “friendly” terminologywhen promoting the program: “steward-ship,” “responsibility,” “innovation,” ratherthan “restrictions” and “controls”

• Create incentives for partners: “win-win”potential, public exposure, and awards

• Use grant application process as tool for ver-tical communication and coordination

• Develop formal and informal agreementsamong stakeholders

• Highlight existing tools that can be adapted

• Develop pilot communities

• Create list of sites with land use controls todemonstrate need for discussion


erties are not breached by future activities thatcould compromise human health and the environ-ment. These checks alert a staff member handlingthe transaction to suspend the activity or to pro-vide an appropriate point of contact for localand/or state authorities.

Revising Forms and DisseminationProceduresPeer exchange participants suggested that the firststep to improve LUC recording and tracking is tomodify existing forms. Land use control checklistsor sections could be added to permit or zoningvariance application forms or environmentalassessment forms. Applicants and reviewers, tocomplete the paperwork, would then be forced todetermine whether or not a property was subjectto land use controls. In so doing, staff membersnot necessarily linked to LUC planning andimplementation would participate in the mainte-nance process and help to ensure that controls arenot threatened or breached by redevelopmentactivities. Additionally, revising such forms helpsto make the application and review process morethorough, thus minimizing future harm to publichealth and the environment.

Developing or updating procedures for shar-ing information among local and state govern-ments can also aid in the recording and tracking

of LUCs. In most cases, states are required to pro-vide a copy of LUC documents to local govern-ments. For example, the Arizona Department ofEnvironmental Quality (ADEQ) provides a copyof a Declaration of Environmental Use Restriction(DEUR) to a local land use jurisdiction. (TheDEUR is recorded with the County Recorder andthe property owner.) After receiving the DEUR, alocal government has no further obligationsrelated to land use restrictions. Nonetheless, byintegrating communication, recording, and track-ing requirements, local and state authorities areable to keep one another informed of land usedecisions and restrictions.

Creating “Flags” and Points of ContactPeer Exchange participants suggested that provid-ing “flags” to demarcate properties subject toLUCs, as well as instructions for how to proceedand who to contact when LUCs are encountered,can improve the application and review processfor permits, variances, and other municipalrequests. Theoretically, when a “flagged” propertyis discovered, the review process would stop, andstaff members would be instructed where and towhom to direct inquiries. Regardless of the pointof contact, such a system can help to reduce thestress of staff members by alleviating the need tomake judgments that are confusing or intimidat-

LUCs in Arizona

The state of Arizona uses a restrictive covenant that runs with the chain of title for a property — theDeclaration of Environmental Use Restriction (DEUR) — if corrective action includes cleanup to usesother than residential use or if corrective action incorporates an institutional or engineering control.Like many land use controls, the DEUR is administered by the state’s environmental regulatory agency,the Arizona Department of Environmental Control (ADEQ). The Declaration must include a legaldescription of the area to be restricted, the nature of the contamination, a discussion of restricted activi-ties, and other pertinent information. In addition, the DEUR:

• Establishes enforceability provisions to be executed by ADEQ, as well as the authority to track,inspect, and replace engineering controls as necessary;

• Requires an initial fee to be paid into a permanent fund to cover administration expenses (subse-quent fees may be collected in site-specific cases, and civil penalties may be pursued by ADEQ);

• Requires property owners of DEUR sites to provide annual reports to ADEQ;

• Requires property owners of sites subject to engineering control plans to notify ADEQ prior to thesale or transfer of property (purchasers are required to comply with existing plans);

• Requires ADEQ to provide a copy of any approved DEUR to a local land use jurisdiction, without obli-gating such a local jurisdiction to new responsibilities.


ing. By properly arming staff members with infor-mation and delegating some responsibilitiesregarding local application and review processes,local officials are able to encourage an effectivehierarchy for recognizing and maintaining landuse controls.

Developing and Maintaining DatabasesDeveloping and maintaining databases to recordand track controls is the process of convertingmunicipal application processes and related infor-mation into an electronic format. Once writtenrecords are converted to electronic files, the infor-mation can more easily be entered, stored,accessed, and manipulated. As a result, the plan-ning and monitoring of land uses at affected prop-erties greatly benefits.

Decisions must be made concerning thedesign of the electronic platform for such informa-tion, the parameters that may need to be added toaccommodate LUC-related information, and theprocess for converting existing data and forms tothe new system. Mirroring or linking to statewideproperty databases and inventories provides aneffective model for database design and can facili-tate communication between local and state gov-ernments. Local officials may consider howinformation related to LUCs will be shared, suchas whether a property is privately or publiclyowned, where public easements are located,where transportation or utility infrastructure is orwas located, and whether or not a property fallsunder federal (CERCLA or RCRA) jurisdiction.Additionally, the database needs to be set up forlong-term information archiving. It must be possi-ble not only to store considerable amounts ofinformation but also to update and modify it inresponse to future recording and tracking needsor technology upgrades. To maintain the database,local governments must train staff on new orupdated procedures, as well as how to react andwho to contact when a “flagged” property isencountered. Finally, staff members must decidehow information will be shared and what levels ofaccess to information to give different staff mem-bers and the general public.

The Platform Design and Data ConversionCreating the actual database to store LUCs data istypically a matter of purchasing or upgradingsoftware and achieving staff commitments to setup data parameters and enter existing records.Current information resources include propertylistings, environmental site assessments, and vari-ous permit and use applications. In addition tounderscoring the need for more comprehensiveforms for such processes, Peer Exchange partici-pants mentioned the benefits of developing aLUCs database - or a subsidiary component toanother data platform. In short, a database offers away to consolidate new and existing environmen-tal data. In addition to benefiting the recording,tracking, and monitoring of LUCs, such a data-base can effectively consolidate information andstreamline daily governmental operations. Almostcertainly, developing a LUCs database wouldrequire additional spending by a local govern-ment for purchasing and upgrading equipment,hiring software and programming contractors,and training (or hiring) staff members for newdata entry and maintenance responsibilities.

Access IssuesDetermining access privileges to LUC-related datais a particularly sensitive issue because of realproperty and liability implications for propertyowners and site operators. For this reason, localofficials must first decide what relative levels ofaccess staff members will have to such informa-tion and whether or not (or how) to make suchinformation available to the public. Participantsrecognized that hierarchies similar those createdfor recognizing and delegating decision-makingresponsibilities during the review process couldresolve such access issues. An emerging approachto controlling access to databases is to centralizeinformation and create different “portals”whereby users gain access to information in rela-tion to their decision-making authority. By creat-ing a similar hierarchy of access among databaseadministrators and staff members ultimately

11 California Health and Safety Code {6.5 H.S.C. 11 § 25220 (d) and(e)}.

12 California Health and Safety Code {6.5 H.S.C. 11 § 25220 (f)}.


responsible for land use decisions, local officialscan adequately protect and appropriately shareinformation.

When determining public access to LUC-related information, local governments must con-sider the privacy rights of property owners withproperties subject to LUCs and the rights ofaffected community members. Residents have aright to know what public health and environ-mental hazards are in their neighborhoods. InCalifornia, for example, the California Departmentof Toxic Substances Control (DTSC) is required toprovide notice of Land Use Covenant Agreementsto the planning and building departments ofcities, counties, or regional councils of govern-ments affected by restrictions.11 Additionally,DTSC maintains a public, online list of recordedland use restrictions and their locations.12

The provision of public information via theInternet is an emerging practice at all levels ofgovernment. Of particular concern to PeerExchange participants was the liability and fiduci-ary nature of LUCs-related data and the possiblecompromise of personal privacy rights of prop-erty owners. This problem is addressed by munic-ipalities in different ways. In the city of Phoenixgeneral information on redevelopment programs,such as brownfields redevelopment and local landuse controls, is posted on the Brownfields LandRecycling Program section of the city’s Web site.13

Users are also provided with contact informationfor appropriate staff members. From them userscan receive limited information on a property-spe-cific basis regarding the environmental conditionsof properties (except specific information pertain-ing to LUCs). It was mentioned that the ArizonaDepartment of Environmental Quality maintainsan inventory of properties subject to LUCs thatincluded the property owner as well as the typeand extent of contamination. As a result, informa-tion sharing at the local level provides publicaccess with minimal restrictions to LUCs-relateddata in the community. However, interaction withan experienced staff member (or online or written

personal queries) is necessary to obtain more spe-cific information.

Incorporating Mapping TechnologiesCritical data related to land use controls and theproperties to which they apply can be presentedin a graphical format as well as recorded in anelectronic database. Mapping technologies cangreatly increase the ease with which LUCs aretracked. Geographic Information System (GIS)technologies provide mapping data and layeredperspectives of for example, LUC-related andother environmental, demographic, and publicworks data. This information can be used to geo-graphically locate LUCs, make decisions regard-ing the redevelopment of such properties, andplan comprehensive revitalization, monitoring,and enforcement initiatives. Local governmentsshould consider upgrading existing equipment orpurchasing new equipment to tackle electronicmapping capabilities. Additionally, the costs oftraining or hiring new staff members must be con-sidered. Finally, creating the ability to share accessto such technical and private information, whileensuring that only authorized users have access,is important to designing and maintaining map-ping technologies.

Peer Exchange participants agreed that theability to visually represent and geographicallymap the location of LUCs could help local govern-ments win support for future redevelopment proj-ects. Capabilities that can couple various sets ofdata with LUCs-related data can help preventincompatible land uses and promote a betterunderstanding of LUCs by staff members, decisionmakers, and the general public. In response to con-cerns raised about the resources required todevelop such a program, participants fromLouisville-Jefferson County mentioned that theLouisville-Jefferson County InformationConsortium (LOJIC) database could be modified toaccommodate LUCs data in addition to the exist-ing environmental and public works information.

EnforcementEnforcing land use controls is a thorny issue thatcontinues to challenge redevelopment practition-

13 For more information, visit http://phoenix.gov/BROWN-FLD/brownfld.html.


ers at the local, state, and federal levels of govern-ment. From a legal standpoint, enforcementinvolves a discrepancy between state and localgovernmental jurisdiction over land use and envi-ronmental issues. Local governments are chargedwith land use regulation through zoning and per-mitting authority, and they are familiar with con-taminated sites within their communities andneighborhoods. Local officials also have the great-est familiarity with their constituents and thecommunity’s perception of revitalization efforts.State regulators and attorneys, on the other hand,are charged with executing the statutes that gov-ern environmental protection, cleanup, andenforcement actions. These officials are oftenlocated in the state capital and they are not neces-sarily familiar with land use issues at the locallevel. As a result of these divisions of responsibil-

ity and expertise, enforcement of land use controlsrequires a coordinated effort by state and localofficials.

These and other issues related to enforcementare addressed in the following questions:

• Are land use controls actually enforceable, andto what degree can local governments, whenexecuting and monitoring LUCs, assumeenforcement responsibilities?

• Does a local government have legal authority to“enforce” LUCs, or is it limited to “oversight”?

• How can LUCs be written to clarify enforce-ment roles and expectations?

• What other local powers might be enforced tohelp strengthen land use controls?

• What actions or breaches would “trigger”enforcement actions?

The Louisville-Jefferson County Information Consortium

The Louisville-Jefferson County Information Consortium (LOJIC) represents a multi-agency effort tobuild and maintain comprehensive geographic information system (GIS) applications to serve Louisvilleand Jefferson County, Kentucky. Participants in the Consortium include the City of Louisville, JeffersonCounty, Louisville and Jefferson County Metropolitan Sewer District (MSD), the Property ValuationAdministrator (PVA), and the Louisville Water Company. Development and implementation efforts areadministered by twelve staff members, costs are shared among all participating local agencies.

LOJIC emerged from an MSD-commissioned study in 1985 to determine the feasibility and cost-effectiveness of developing comprehensive GIS technology for Jefferson County. The feasibility studyfocused on mapping and related data needs of various organizations; a conceptual computer systemdesign; system costs and benefits; and methods of financing and cost allocation. As a result of the fea-sibility study, MSD took the lead in implementing the Consortium and solicited participation from localpublic agencies and utilities as early as possible. Formal lease/purchase agreements now exist betweenMSD, City of Louisville, Jefferson County, PVA, and the Louisville Water Company as full partners in thedevelopment of the Louisville-Jefferson County Information Consortium.

The LOJIC Wide Area Network connections include:

• MSD (Planning/Development, Stormwater Management, Engineering Records, Industrial Waste,Revenue, Customer Service, Information Technology);

• City of Louisville (Public Works, Maintenance, Solid Waste Management,Inspections/Permits/Licenses, City Police, City Fire Department, Health Department, Metro Parks,Development Authority);

• Jefferson County (Public Works, Planning Commission, Code Enforcement, Board of Elections, CountyPolice, Air Pollution Control, Health Department, Disaster & Emergency Services); and

• PVA (Property Mapping, Residential/Commercial Assessment) and the Louisville Water Company.

The development and implementation of LOJIC has progressed and gained momentum as a source ofreliable geographic information for all of Jefferson County. More importantly, LOJIC is an excellentexample of cooperation, communication, and coordination among public agencies and utilities in anattempt to develop a shared GIS to the benefit of the community as a whole.

Information in this sidebar was adapted from: “What is LOJIC?” Available athttp://www.lojic.org/about/index.htm. July 17, 2003.


• How can enforcement be better coordinatedbetween state and local governments?

In answering these questions Peer Exchange par-ticipants discussed establishing the necessarylegal authority for LUC enforcement, assessingthe internal capability of a local government toenforce controls, and ways in which local officialsand state and federal regulators can worktogether.

Establishing Legal Authority forEnforcement of Land Use ControlsIn order to establish legal authority to enforceland use controls, local governments must iden-tify what state and federal statutes apply to con-tamination, land use, cleanup, and enforcementrelating to the property in question. Additionally,local officials need to investigate whether or not aproperty is undergoing cleanup and redevelop-ment under state-sanctioned programs, such as avoluntary cleanup program, that may raise juris-dictional questions. General information concern-ing whether the local or state governmentmaintains jurisdiction over current and futureactivities at the site can be discovered with legalresearch and preliminary environmental siteassessments. For more pointed jurisdictional andlegislative questions, local officials can consultappropriate state and federal regulators.

Identify Existing PowersPeer Exchange participants discussed how exist-ing local government land use authorities such aspermitting and zoning could be used as a basis forestablishing LUC enforceability. For example,restrictions placed on any redeveloped propertywould need to coincide with the overall zoningfor a parcel or an overlay created for a designated

area of land. By extending existing zoning inspec-tion, permitting, and enforcement powers, localgovernments might be able to take the actionsnecessary to ensure that LUCs were upheld. Anydangerous or illegal activities could be restrictedby including trespassing provisions in land usecontrols at properties undergoing planning orredevelopment. By applying trespassing (or simi-lar) provisions at properties subject to LUCs, localgovernments are able to adapt existing policingduties (of building and property inspectors andpolice and fire department personnel) to encom-pass the monitoring of land use and activityrestrictions. Participants considered a systemwhereby permits for sites subject to land use con-trols could be withheld, suspended, or revoked.

Determine Degree of AuthorityIn addition to expanding existing land use author-ity, local governments must collectively decidehow much, if any, enforcement responsibility theirstaff members would be qualified to accept or feelcomfortable accepting. Despite their familiaritywith properties restricted by LUCs, local govern-ment officials may not wish to take on responsibil-ities often delegated to state and federal officials.Limited resources, lack of experience, and staffingshortages are some of the reasons. In other situa-tions, a local government might seek to take amore active enforcement role but lack the jurisdic-tion to do so under state law. A good startingpoint for determining a local government’s rela-tive degree of enforcement authority is throughearly and proactive coordination with state andfederal counterparts. For example, the ArizonaDepartment of Environmental Quality retainstracking, inspection, and enforcement authorityover engineering controls when necessary.However, ADEQ does not have any enforcement

Information Management: First Steps

• Purchase or upgrade necessary hardware and software for database and mapping requirements

• Design or adapt existing databases to accommodate land use control data

• Determine roles and access privileges of administrators

• Determine access privileges of local government staff and nongovernmental parties

• Integrate County Clerk and Recorder during all phases of development and implementation


authority over institutional controls. Such a situa-tion provides an excellent opportunity for stateand local governments to collaborate and deter-mine if an agreement can be reached so that insti-tutional controls can be enforced by thebest-suited authority (presumably the local gov-ernment) with jurisdiction over the LUC in ques-tion. Through such negotiations, informal orformal agreements may be devised to assign spe-cific oversight and enforcement duties to appro-priate governmental authorities.

Develop Guidelines for Reporting andEnforcingIn order to carry out enforcement actions, localgovernments must devise clear procedures forenforcing land use controls and reporting viola-tions to the proper authorities when those activi-ties are beyond their own jurisdiction. In the stateof California, Land Use Covenant Agreementsmust be recorded in the county where the prop-erty is located.14 Property owners are required toprovide a copy of such controls to the Departmentof Toxic Substances Control.15 Peer Exchange par-ticipants recommended that a clear set of “trig-gers” for action and a “chain of command” fornotification of proper authorities inside and out-side of local government. Additionally, theseguidelines need to be clearly articulated to prop-erty owners, operators, and surrounding neigh-bors, as well as made available to the generalpublic. Beyond general property location andactivity restrictions, Massachusetts statutesrequire that Activity and Use Limitations containclauses to ensure that restrictions are referenced inall future property interest instruments and thatpotential changes in land use are checked for con-sistency with specified limitations.16 This sort oftrigger and notification system would also requirecoordinated planning among public and privatestakeholders and, possibly, the general public.

Assessing Internal EnforcementCapabilityBefore a local government can develop an enforce-ment authority, program, or collaborative agree-ment, staff members must first assess theirinternal capability to execute such actions. Time,labor, and financial resources are required toactively monitor and enforce land use controls.Staff members will also need to be trained to takeon new responsibilities. Oversight of day-to-dayactivities may be beyond the scope of a local gov-ernment’s enforcement capability. An essentialstep in this process of assessing internal capabilityis to project funding estimates and secure the nec-essary resources for setting up and carrying outenforcement activities.17 In other cases, local offi-cials must consider the “willingness” of localauthorities to report and act on violations ofrestricted activities on private property, as well aszoning judges’ readiness to accept such cases.

Inventory and Synthesize Responsibilities ofLocal OfficialsAs mentioned, the ability to oversee activities(including redevelopment, subdivisions, and infra-structure improvements) on private properties is achallenging task for a local government. It cansecure access authority to a single or multipleparcels affected by LUCs. But, it is unrealistic tothink that all such sites can be properly overseenat all times. Nonetheless, as Peer Exchange partici-pants stressed, it is important to start somewhere.Participants suggested that new, LUC-relatedinspection or policing duties could be added toexisting local government responsibilities. It isunlikely that a separate agency will be created tomonitor and enforce land use controls. Existinginspection agents could monitor LUC compliancewhen visiting (or in the vicinity of) a property orfacility subject to restrictions. Such a processwould require effective tracking of controls andnotification of appropriate city departments andstaff members. Inspectors would need information

14 California Health and Safety Code {6.5 H.S.C. 11 § 25220 (d)}.

15 California Health and Safety Code {6.5 H.S.C. 11 § 25220 (c)}.

16 Massachusetts Contingency Plan {310 CMR 40.1403 (7) (h) and(i)}.

17 Numerous issues related to funding land use control design,implementation, and management are discussed in the forthcom-ing section “Funding.”


about what to look for (for example, diggingbelow restricted depths, trees planted above caps).Adding responsibilities to often overextended localgovernment officials is not a long term solution,but often occurs when financial and staff resourcesare limited. Additionally, participants favored themodification of mapping systems and recordsdatabases, such as the aforementioned LOJIC sys-tem, to include LUCs-related information.

The “Willingness” of Local Officials toEnforce Land Use ControlsFor varied reasons (internal capacity, political cli-mate, community sentiment), the enforcement ofland use controls may not be seen as a popular orworthwhile use of local government resources.For example, communities aggressively pursuingrevitalization and the accompanying boost in rev-enue may lack the impetus to report and enforceviolations on profitable operations. Or, localauthorities may be reluctant to take action againstestablished community members and institutions.With regard to these points, participants reiteratedthe need for clearly designed and posted guide-lines and consequences for failure to comply withland use controls. By making affected parties andthe general public aware of existing LUCs andwhat is required to maintain them, local govern-ments are better able to promote understandingand compliance. Moreover, spreading knowledgeof land use controls, particularly to residents andbusinesses, promotes citizen monitoring andreporting. Incentives and public recognition forcompliance with LUCs, such as safety awards, canimprove self-monitoring by property owners andoperators. Finally, if local governments encountersustained resistance to enforce LUCs (internally)and to comply with set controls (externally), theycan defer to state and federal authorities for assis-tance in ensuring compliance.

Coordinating with State and FederalRegulatorsAfter determining their appropriate enforcementrole, local officials need to coordinate with state

and federal regulators to ensure that proposedactions will comply with established legislationand other environmental programs.18 In somecases, a local government may need to develop acollaborative approach with state and federalauthorities to enforce land use controls by sharingresources; in others, it may be necessary to outlineformal jurisdictional and legal boundaries andresponsibilities for all levels of government.

The enforcement of LUCs can be enhanced bycreating awareness and accountability amongappropriate local government agencies or depart-

ments. Peer Exchange participants suggested thatdesigning new “checks” for permits, where flagsfor properties subject to LUCs would trigger amore extensive review process or the involve-ment of proper authorities, could assist the earlyphases of monitoring activities where controls arein place.

By working with state and federal regulators,local officials can enhance enforcement capabili-ties in two ways. First, a cohesive working rela-tionship, regardless of the specific delegation ofenforcement responsibilities, can ensure that theoverall structure of the local program complieswith state and federal legislation. As previouslymentioned, Louisville-Jefferson County and mem-bers of the Natural Resources and EnvironmentalProtection Cabinet collaborated to develop theKentucky Voluntary Environmental RemediationAct. This effort exemplifies coordination in the18 For a thorough discussion of intergovernmental coordination

issues, see earlier sections on “Vertical Coordination”.

Second phase of redevelopment at Riverfront Park,Louisville, KY


development of enforcement and delegationresponsibilities for land use controls.

Second, coordinating with state and federalpartners helps to establish effective trigger mecha-nisms, points of contact, and steps to initiateenforcement actions. Recent amendments toArizona statutes require the creation of a financialassurance mechanism (FAM) as part of engineer-ing control plans. Following approval by theArizona Department of Environmental Quality,maintenance and replacement responsibilities forengineering controls can be delegated to the FAM.The administrator of the FAM, therefore, ischarged with upholding engineering controls onproperties carrying such restrictions. In somecases, that administrator may be a local govern-ment; in others, officials may engage privateadministrators to develop institutional controls orother agreements that ensure that financial andenforcement plans remain viable and provideopportunities for local government oversight.

FundingSimilar to many local government initiatives, thedesign, implementation, and maintenance of landuse controls requires financing in order to be suc-cessful. Recording, tracking, monitoring, enforc-ing, and managing information, as well as

providing the training necessary to develop suchcapabilities, will also require long-term funding.In some cases, local governments may recognizethese challenges when pursuing LUCs as a rede-velopment tool; in others, state and federal legis-lation may require LUCs in remedial decisionsand place unanticipated financial responsibilitieson a local government. In either scenario, localgovernments must develop innovative strategiesfor allocating funding. They also need to createlocal financing mechanisms, as well as pursuestate and federal grants and loans that pertain(directly or indirectly) to LUCs. In their discus-sions of funding issues, Peer Exchange partici-pants addressed the following questions:

• What are the challenges of projecting and gener-ating funding streams to ensure long-termmaintenance of LUCs?

• How do the costs of land use controls comparewith full cleanup costs?

• Who is responsible for covering the long-termcosts?

• How should local government address andovercome long-term costs?

In answering these questions, Peer Exchange par-ticipants discussed the topics covered in this sec-tion: projecting the long-term costs of land usecontrols, maximizing existing resources, anddeveloping responsibilities for responsible andbenefiting parties for LUC design, implementa-tion, and management.

Projecting Long-Term CostsAs indicated, land use controls are meant to act inperpetuity or at least until they are determined tobe no longer necessary to protect human healthand the environment. Accordingly, funding mech-anisms must consider the entire “life-cycle” costsof LUCs. These costs include the labor required todesign, implement, maintain, and enforce controlsthrough a series of redevelopment events, as wellas the technologies and equipment purchased toaccomplish those duties. Additionally, redevelop-ment practitioners must anticipate potential litiga-tion brought against property owners, operators,developers, and future landowners, all of whomay dispute use restrictions or enforcement

Enforcement: First Steps

• Establish the roles of all players, includingthe liabilities and duties of responsible andpotentially responsible parties.

• Assess the internal capacity of local govern-ment to enforce land use controls.

• Create or reorganize enforcement staff anddepartments.

• Address information management require-ments.

• Establish trigger mechanisms with inputfrom appropriate state and federal regula-tors.

• Draft enforcement language to clearly iden-tify what is restricted: use or activity.

• Determine the remedy (notice, fine, litiga-tion) will be the most effective.


actions related to LUCs. An important considera-tion for local officials is whether or not the costs oflong-term LUC maintenance will eventuallyexceed the costs of site remediation to unrestricteduse levels and who will cover those costs. Whilecost projections need to be as accurate as possible,the eventual funding system must be flexible toaccommodate any unforeseen accidents or discov-eries on the property in question or modificationsto the controls.

Peer Exchange participants discussed publicperceptions about the costs of land use controls aswell as political and regulatory pressures on localgovernments when state authorities prefer totalsite cleanups, regardless of costs, to land use con-trols. Because of the political atmosphere in theCommonwealth of Kentucky, the NaturalResources and Environmental Protection Cabinetfavors remediation of properties to unrestricteduse levels over the use of LUCs at sites with resid-ual contamination. While this stance makes sensefor certain properties, such as residential areas orchildcare facilities, effective demonstrations ofhow LUCs can aid in returning idle properties toproductive use can persuade local and state deci-sion makers of the advantages of using controls tofacilitate redevelopment. For example, PapaJohn’s Louisville Cardinal Stadium was a tremen-dous redevelopment success for the University ofLouisville and the Louisville-Jefferson Countymetropolitan community as a whole. By strategi-cally placing restrictive caps and paved surfacesover residual plumes of diesel fuel and suspendedpetroleum products, LUCs helped turn a formerrailyard into a community focal point of great eco-nomic and entertainment value.

Maximizing ResourcesLocal governments can stretch existing fundingfor land use controls in a variety of ways. Well-thought-out approaches are needed to maximizestaff responsibilities and technical resources inaddition to actual funds. In some local govern-ments, this synthesis may call for staff taking on

additional responsibilities; in others, existing sys-tems and technologies can be modified or used indifferent ways. Collaborative efforts like thosementioned in earlier discussions of “StakeholderCoordination,” often are fruitful.

On strategy to maximize funding for land usecontrols is to pursue state and federal resourcesthat can be applied directly to or offset the costs ofimplementing and maintaining LUCs. Under theSmall Business Liability Relief and BrownfieldsRedevelopment Act of 2002, local governmentsmay use up to 10 percent of U.S. EnvironmentalProtection Agency (EPA) grant funding for devel-oping brownfields programming to monitor andenforce institutional controls.19 In addition, poten-tial LUC costs can be offset by leveraging grantsand loans intended for brownfields assessmentand redevelopment, housing development, blightreduction, greenspace preservation, innovativeand efficient building design, and environmentaljustice. For example, grants, loans, and technicalassistance available for brownfields redevelop-ment through EPA, severe economic hardship ormajor public works development through the U.S.Department of Commerce, blight reduction andcommunity development through the U.S.Department of Housing and Urban Development,cleaning up former energy generating and storagefacilities through the U.S. Department of Energy,redeveloping former military installations throughthe U.S. Department of Defense, and rural com-munity enhancement through the U.S.Department of Agriculture are means of indirectlycreating funding resources for LUC design, imple-mentation, and management by offsetting othercosts of property cleanup and redevelopment. Thefollowing table provides examples of potentialfederal funding resources.

The Commonwealth of Kentucky has thepower to authorize cost recovery actions for siteremediation on a case-by-case basis. Similarly, thestate of Wisconsin allows local governments thatacquire contaminated properties to seek reim-bursement for cleanup costs from potentiallyresponsible property owners. Through thesemechanisms, land use controls could be used toencourage property owners to partner with localgovernments (by proactively lessening potential

19 Small Business Liability Relief and Brownfields RevitalizationAct {42 U.S.C. 9604 § 211 (k) (4) (C) (ii)}.


future recovery actions) in property cleanup andredevelopment transactions.

Developing ResponsibilitiesAnother way of funding LUC maintenance isdevelop a system that places financial obligationson persons responsible for contamination, as wellas future property owners and operators. In sodoing, local governments can decrease their ownfinancial burdens and establish a precedent forholding responsible parties and those who bene-fit from redevelopment responsible for some ofthe costs.

Parties who cause contamination, and to alesser degree property owners and operators after

redevelopment, should be required to contributeto the costs of implementing and maintaining landuse controls. Although all Peer Exchange partici-pants agreed on this method of leveraging fund-ing, there was some debate about over how toorganize such revenue-generating mechanisms.One source of debate stemmed from the idea of acalculated up-front, one-time fee. For example, theArizona Department of Environmental Qualitycollects an initial fee (set by rule) from partiesentering Declaration of Environmental UseRestriction (DEUR) agreements (see sidebar inInformation Management section of this chapter).Fees are placed in a permanent fund used to payall reasonable and necessary ADEQ expenses

Table 4.1 Selected Federal Resources for Brownfields Cleanup and Redevelopment

U.S. Department of AgricultureRural Empowerment Zone/Enterprise Community: To promote economic opportunity, sustainable com-munity development, preference points to rural EZ/EC applications that include brownfields

Urban Resources Partnership Funding: Technical assistance to community-level projects for sustain-able redevelopment in disadvantaged communities

U.S. Department of Commerce, Economic Development Administration Planning Assistance for Economic Development Districts, Indian Tribes, and Redevelopment Areas:Planning grants to generate and retain jobs, and stimulate industrial and commercial growth

Public Works and Economic Development Facilities Program: Grants for infrastructure on brownfields

U.S. Department of DefenseMilitary base realignments and closures: the return of properties to local communities, and communityassistance with site remediation and redevelopment

Technical brownfields assessment, consultation and service

U.S. Department of EnergyOffice of Energy Efficiency and Renewable Energy: Brownfields redevelopment as a strategy for sustainable development

Office of Environmental Management: Technical assistance in environmental cleanup and stabilization for brownfields efforts

U.S. Department of Housing and Urban DevelopmentCommunity Renewal Program (RC/EZ/EC designations): Jointly administered with USDA, tax abate-ments and restructuring aimed at remediating and redeveloping brownfields sites and encouragingcommunity development

Community Development Block Grants: Allocated through development authorities to addressbrownfields redevelopment issues in entitlement communities

U.S. Environmental Protection AgencyAssessment Grants: Up to $200,000 in funding to conduct brownfields assessments. Sites may includepetroleum contamination.

Cleanup Grants: Funding for local governments, tribes, and nonprofit organizations that own theproperties for the costs of cleanup; up to 10 percent can be used to monitor and enforce institutionalcontrols.


required to administer these restrictions.Participants saw that course of action as a flawedoption because fees could not be reinstated shouldfuture costs exceed the initial payments.Additionally, participants felt as though a one-timefee could give the wrong impression: known orpotentially responsible parties might think theycould walk away from long-term responsibilities,believing a one-time payment was all that wasrequired of them. ADEQ also requires subsequentfees to execute DEUR and other activities relatedto land use. For example, fees to establish financialassurance mechanisms and collected civil penaltiesare also used to fund DEUR administration.

Conclusions and Next StepsThis chapter has examined the five essential com-ponents of land use control management: designand implementation, stakeholder coordination,information management, enforcement, and fund-ing. These components need to be addressedwhen revitalization strategies that incorporateLUCs are initially developed. Thus, before manylocal governments can tackle such a complicatedissue, it may be useful to assess their relative insti-tutional knowledge of and interest in land usecontrols. To initiate this process, local govern-ments can research successful programs andstrategies, call upon local government peers,organize internal staff meetings, engage othergovernmental and community stakeholders, andconsult land use and legal professionals.

Researching SuccessesAs evidenced in earlier discussions, a number ofstates have enacted or are developing innovativemeans of designing, implementing, and managingland use controls. Although no document or pro-gram will work in all jurisdictions, local govern-ments should study approaches that have beensuccessful in other communities and adapt thosestrategies to fit their particular needs. An excellentstarting point for incorporating LUCs into com-prehensive revitalization plans is to research thesuccesses of others.

Calling Upon PeersIn addition to researching existing policies, rede-velopment practitioners can contact their counter-parts in other local governments to discusschallenges and gain insights about an inherentlycomplicated process. Beyond seeking out peerswho have demonstrated knowledge in this field ofexpertise, local officials can attend conferencesand seminars that discuss LUCs and related rede-velopment issues. In this way they will meetexperts and redevelopment practitioners who arefacing similar challenges.

Educating StaffBy organizing one or several staff meetings to dis-cuss LUCs and how they might be implemented,a local government can create interest, assuageconcerns, and solicit endorsement from colleaguesthat will help manage programming on a dailybasis. In addition to introducing new concepts, themeetings are an opportunity to hear feedbackfrom a range of staff members and departments.This can enhance LUC design and eventual imple-mentation and management processes from theearliest stages of development. Developing simpleeducational materials and interactive presenta-tions are excellent means of encouraging atten-dance and meaningful dialogue.

Engaging Other StakeholdersAfter approaching local government staff mem-bers, redevelopment practitioners can turn tomembers of state and federal governments, theprivate sector and the general public to shareideas and receive feedback from a range of per-spectives. Such outreach efforts can be accom-plished in targeted meetings or personal contacts.

Consulting ProfessionalsIn addition to community stakeholders, local gov-ernments can enlist the expertise of legal, environ-mental, governmental, and policy professionals.These experts often have direct technical assis-tance to offer. In addition, they also may be able toprovide research materials, Internet resources, orvaluable leads to other communities tackling simi-lar issues.


Using land use controls to enhance thecleanup and redevelopment of contaminatedproperties provides local governments with anumber of challenges and opportunities.Although the use of engineering and institutionalcontrols can help to streamline the cleanupprocess, they require ongoing maintenance andoversight to ensure that residual contamination issafely contained. While they can provide incen-tives and bring reluctant property holders anddevelopers on board, LUCs also entail expenses(sometimes unanticipated) for local governments.Money, staff, and equipment are needed to man-age land use and activity restrictions.

Land use controls promote community andeconomic revitalization. They are a valuablemeans of addressing the cleanup and redevelop-ment of properties that would otherwise remainunproductive and potentially hazardous. Thechallenge for local governments is to design,implement, and maintain those controls in a man-ner that balances community, economic, and envi-ronmental goals and protects public health andthe environment.

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