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Threatened with potential lawsuit, Hernando commission still rejects site’s Brownfield designation

By Barbara Behrendt

BROOKSVILLE — Even in the face of an open threat of a lawsuit, the County Commission this week unanimously rejected an application to designate the nearly-completed Hammock Ridge I apartment complex in Spring Hill as a Brownfield site.

A Brownfield is a property on which development "may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant,’’ as defined by the Environmental Protection Agency.

Commissioners expressed heartburn over the application throughout two extensive public hearings conducted in October. The Spring Hill site on Omaha Circle will feature a 104-unit garden-style apartment complex with amenities including a swimming pool, fitness center and playroom for children.

The developer, the Housing Trust Group, broke ground after cleaning up garbage found on the site and is nearly ready to open for business.

Other than ground penetrating radar — which found no abnormalities underground — no other environmental testing was done at the site. The developer’s representative, Michael Goldstein, assured commissioners that there was no contamination.

But Florida’s law on Brownfields, which Goldstein helped author two decades ago, only requires the perception of contamination, along with five specific non-environmental criteria, for a county to be compelled to approve a site as a Brownfield.

Goldstein assured the commission — with the agreement of commission staff — the applicant has met the five criteria, and that once those criteria are met, the designation is mandatory according to the law.

Goldstein reminded them that he had previously provided proof that garbage had been found on the site before it was developed. Garbage on a site, he explained, could mean contamination and perceived contamination could stunt development there, which is why the law was created in the first place.

Since the law was approved in 1997, Goldstein said there have been 436 Brownfield designations across the state. In only two percent of those sites was actual contamination documented.

Goldstein also reminded them what he had told them at the last hearing — that they faced legal action if they didn’t follow the law. "This is a legal issue,’’ he said, "and the county has significant exposure.’’

The Brownfield determination is significant in that it allows the developer to receive certain financial incentives. For the Hammock Ridge project, sales tax incentives could bring $456,000 back to the developer based on the project’s $19 million price tag.

But commissioners didn’t focus on the five criteria on Tuesday. And although they were still concerned about making the Brownfield decision on a parcel where no contamination existed and where none was tested for, they took a new tack.

Commission Chairman Wayne Dukes said that, while he knew that the county had been sued in the past for making decisions based on emotion, the decision would have been easy if the developer had called for the designation before building the apartment complex. But since that didn’t happen, Dukes said, "I can’t support this .... even if there are ramifications.’’

Commissioner John Allocco said that while Goldstein saw no down side to the commission making the Brownfield designation, Allocco said that was a "total fallacy" because the designation would create a stigma on the site and surrounding property values would suffer. Other empty lots in the county also have garbage dumped on them, Allocco said.

Allocco said that it was up to the commission to decide if there was a perception of contamination since they were the trigger for the designation. "Yes, you can sue us if you like,’’ he said.

Commissioner Nick Nicholson agreed that garbage on vacant lots was rampant in Hernando County. But saying every lot with garbage should be a Brownfield site? "I don’t think so,’’ he said.

County attorney Garth Coller then carefully questioned each commissioner on whether they perceived that there was garbage on the site of the apartment complex but did not perceive that there was contamination on the site of the apartment complex. Each in turn said yes.

Then they voted unanimously to reject the application.

Even knowing that the vote could land them in court, commissioners returned to the Brownfield issue at the end of their meeting Tuesday. Dukes said he thought they had made the right decision. Commissioner Steve Champion agreed. "I can sleep tonight,’’ he said.

The developer has also submitted a separate application for a Brownfield designation for the second phase of the apartment complex. How the board’s decision will impact that application was not discussed during the commission meeting.

Contact Barbara Behrendt at [email protected] or (352) 848-1434.