Governor Brown Signs AB 440
Does your city have a contaminated, boarded-up, abandoned, graffiti- and trash-encrusted property sitting in the middle of what was a vibrant and busy area? In the good old days (pre-2012, that is), redevelopment agencies could compel cleanup of contaminated properties in redevelopment project areas using the Polanco Redevelopment Act. Akin to a nuisance action, the redevelopment agency would give notice to the responsible parties, usually the owner of the property or the operator of the former business, to clean up the property. If the responsible party failed to comply, the redevelopment agency could conduct the cleanup and recover its full costs, including attorneys’ fees and cost of staff time. But what can be done now that redevelopment agencies no longer exist?
On Saturday, October 5, Governor Brown signed AB 440 (Gatto), which provides cities, counties and some housing authorities a tool similar to the Polanco Redevelopment Act. While not officially named, the Gatto Act (for lack of a better name) gives cities, counties and housing authorities the authority to compel cleanup of contaminated properties-action formerly a function of redevelopment agencies.
More specifically, this law gives cities, counties and housing authorities the right to obtain environmental information from property owners, the authority to compel cleanup on properties that the local agency has found to be blighted by contamination, the right to recover the full costs of cleanup-including staff time and attorneys’ fees-and immunities for any release or releases addressed in an approved cleanup plan. The immunities are available to the local agency, the developer, its lenders and subsequent purchasers. Unlike many of the other brownfields tools that offer immunity, this immunity runs with the land.
Although the new law is modeled after the Polanco Redevelopment Act, there are a number of significant differences. Many of the differences account for the operational differences between redevelopment agencies and cities and counties. For example, redevelopment agencies often used eminent domain authority to access property to evaluate the contamination. The Gatto Act simply provides a right of entry for both site assessment and cleanup.
Other differences define the universe of properties to which the Act applies. The Polanco Redevelopment Act was available to all contaminated properties in redevelopment project areas. The Gatto Act, on the other hand, may be used on any property found to be blighted within the jurisdiction of the city, county or housing authority. If a property is currently under oversight of the Department of Toxic Substances Control or a Regional Water Quality Control Board, then before using the Act, the local agency must communicate with the regulatory agency and mutually agree to the local agency’s use of the Act. There are, of course, dispute resolution provisions if the regulatory agency and the local agency cannot agree.
While redevelopment agencies might be history, the community benefits of cleaning up contaminated properties may still be achieved under AB 440. The new law may be found at Health & Safety Code, Chapter 6.10, section 25403 et seq.
Leah Goldberg, Senior of Counsel with Meyers Nave, worked closely with Assemblyman Mike Gatto’s office on AB 440.