Artist-in-Residence Geoffrey Stein

OF NOTE

Haub Law Alumni Help Secure Land Use Entitlements for Frito-Lay

HAUB LAW ALUMNI Jennifer L. Gray ’06 and Nicholas M. Ward-Willis ’93, are attorneys with Keane & Beane, P.C., and both received the Law School’s Advanced Certificate in Environmental Law. Recently, they helped client Frito-Lay secure entitlements for the construction of a new 150,000 squarefoot fulfillment center on a large parcel of land in East Fishkill, NY. Prior to Frito-Lay’s acquisition of the parcel, Jennifer and Nick also assisted in the extensive environmental due diligence for the parcel, which is part of the former IBM East Campus. The company will invest $100 million in the project, which is expected to create 80 full-time equivalent jobs in Dutchess County, plus about 80 construction jobs.

You recently helped your client Frito-Lay North America, the $18 billion convenience foods division of Purchase, NY-headquartered PepsiCo, Inc., secure land use entitlements for a new fulfillment center. The facility will operate 24 hours a day, six days per week, distributing snack products manufactured elsewhere to the New York metropolitan market. Can you describe what you did for your client in your role as local land use attorneys?

As local land use attorneys, we play several roles in moving toward the goal of getting “shovels in the ground.” At its core, our role is to ensure the land use entitlement application is being processed in a way that conforms to all legal requirements and creates a strong basis or “record” upon which the local boards will make their decision. Decisions by local boards to approve site plans, special permits and subdivisions, for example, must be based on the “record” before the board at the time the decision is made. As land use attorneys, we work to get the appropriate evidence into the record so the board has proper support to grant the application.

What was unique about the Frito-Lay entitlements is the speed at which we were able to secure approvals. Within three months after filing applications for special permit, site plan and subdivision we were able to navigate review by two separate approval authorities (Town Board and Planning Board) to secure approvals for each of those applications for the new 150,000 square-foot fulfillment center. Included in that period was the Town Board’s adoption of a Negative Declaration for this Type I Action pursuant to the New York State Environmental Quality Review Act (SEQRA). Anyone who knows anything about development in New York State knows this schedule is aggressive, at best.

Communication and engagement with local officials and staff was critical in allowing us to achieve this for Frito-Lay. Months prior to filing the formal written applications, we were in regular communication with the Town’s staff, consultants and officials to identify and work through possible issues and familiarize them with the project. The Town had been working for several years to encourage the redevelopment of the former IBM Campus so its officials were receptive and cooperative in working with Frito-Lay. Town Supervisor Nick D’Alessandro was especially helpful in supporting the project, which will bring jobs and tax revenue to the Town. Early outreach and a receptive jurisdiction made for the perfect combination in swiftly securing the entitlements. Tell us what is involved in the land entitlement process generally. Are there common principals applicable from project to project?

We could devote this whole magazine to describing the good, the bad and the ugly that’s involved in the land use entitlement process in New York. Just when we think we’ve seen it all—from arrests at public hearings to tin foil hats worn in opposition to a wireless telecommunication application—another wild thing happens at a local board meeting. Suffice it to say that the fundamental goals applicable to all projects are to secure the entitlements in a timely, cost effective manner that satisfies all substantive and procedural legal requirements with a record that will withstand legal challenge. The manner in which this is accomplished varies from jurisdiction to jurisdiction, but the same principals apply.

Does this work differ significantly from municipality to municipality, or jurisdiction to jurisdiction?

Even though the fundamental goals remain unchanged from project to project there are wide ranging differences in the manner in which an application is processed in each municipality. Every municipality has its own unique application submission requirements, some require pre-application meetings with municipal staff, some utilize the planning board secretary as the point of contact for an application, while others utilize the planning board chairperson, municipal attorney, building inspector, or other municipal staff. Boards themselves each have their own unique procedures for processing an application. Some have strict protocols to follow during meetings, while others prefer a more informal discourse. Some have particular subjects on which they focus their attention, such as stormwater impacts in communities that experience frequent flooding. Understanding these nuances and establishing relationships with municipal officials and staff in the communities in which you are processing applications is an important part of our job as local land use attorneys.

One aspect of the practice that remains the same in most jurisdictions (except, perhaps, Long Island) is the late-night meetings! We sometimes joke amongst our land use colleagues that by traveling from municipality to municipality each night for board meetings we’re following the tradition of our judicial forefathers who “rode the circuit.”

Nicholas, you handled the environmental due diligence work for Frito-Lay’s acquisition of the land for the project. Can you describe what that entailed?

The environmental due diligence work for this site had several layers. We worked with the NYS Department of Environmental Conservation to Jennifer L. Gray ’06 Nicholas M. Ward-Willis ’93

process Frito-Lay’s request to remove the site from the scope of a RCRA permit which covers remaining portions of the former IBM East Campus. The site is also governed by a Declaration by which IBM put certain restrictions on the future use of the former IBM East Campus. Part of our work involved interfacing with the General Counsel’s office at IBM to confirm compliance with these private restrictions. I regularly worked with FritoLay’s environmental consulting firm, Frito-Lay’s transactional counsel and the seller’s agents to identify and investigate liabilities or risks to the client and then work to reduce or eliminate those risks. Part of the risk mitigation efforts involved securing environmental insurance for the client upon favorable terms. At the end, we were able to offer the client the advice needed to allow it to close on the land acquisition on-schedule before the close of its fiscal year.

Jennifer, you have collaborated with Pace’s Land Use Law Center—can you talk about that?

Jessica Bacher and Tiffany Zezula of the Land Use Law Center have been kind enough to invite me to join them in presenting several training seminars offered to planning boards and zoning boards throughout New York State. Typically, my role has been to discuss a board’s responsibilities under the New York State Environmental Quality Review Act (SEQRA). Review of the environmental impacts of a project pursuant to the requirements of SEQRA is an important step in the board’s procedures. Unfortunately, many times project opponents use SEQRA as a weapon against a project. The Land Use Law Center does a great job in empowering boards

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