By Nicholas Gahl, Gahl Legal Group
Irrespective of the real estate season, the Indiana Brownfields Program is inundated with Comfort Letter applications – many of which are incomplete. In addition to the various legal requirements set forth by statute, regulation, and non-rule guidance, counsel must be aware of the strict timing elements. Navigating this area for the first time – or even the tenth time – can present challenges, especially in the middle of a transaction with multiple parties, interests, and deadlines.
To better guide applicants, Brownfields has recently issued new forms for Comfort Letter and Site Status Letter applications. Practitioners should consult the updated submittal checklist, as well as the supplemental information request form (both available under “Online Services” here.) To further help, the friendly Brownfields’ staff provides the following tips for streamlining your next application:
- The Name Matters: The entity acquiring title to the property (the applicant) must be the same entity for whom the Phase I was completed, or a reliance letter is needed for the applicant before the transaction closes.
- User Questionnaire: The applicant should answer the User Questionnaire (not the current land owner), and the person answering on behalf of the applicant should be an authorized representative of the applicant (e.g. president, managing member).
- Technical Opinion: Brownfields will not provide an opinion on the “reasonable steps” if there are uninvestigated Recognized Environmental Conditions (RECs) outlined in the Phase I; rather, Brownfields will recommend a Phase II ESA.
- Timing of the Phase I: It is widely known that certain aspects of a Phase I only have a 180-day shelf life for viability in an acquisition, but less known is that the shot clock starts when the Phase I task is performed. Ensure that the Phase I identifies when the various threshold steps of a Phase I (e.g., site reconnaissance, interviews) were conducted. Brownfields will not start technical review until these legal elements are verified.
- Yes, All is Needed: Applicants often do not include the necessary information/documentation requested on the first page of the CL/SSL Supplemental Form like a site map depicting the parcel(s) and parcel numbers(s), a description of the proposed redevelopment (if known) with a site redevelopment/design plan, copies of deeds and/or legal descriptions. Also, be sure to submit one paper and one electronic copy of the application. The paper copy is for document review and the electronic copy is for the Virtual File Cabinet.
Once your application is received by the Brownfields Program, you will receive an Acknowledgement Letter that will remind you of some of these important aspects of the application. Keep in mind, a Comfort Letter and Site Status Letter application will not be reviewed for legal and technical compliance until all required information has been submitted. The current review period is 120 days, so do not delay the start by overlooking these key areas.
A special note of appreciation to the Indiana Brownfields Program staff for its contribution to this article!
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