The Environmental Strategies Practice Group works closely with both our Real Estate and Business Finance Practice Groups to solve complex land use and development issues for both greenfield and brownfield sites.
In addition to conventional due diligence investigations and permitting issues, we support our clients in planning minimal impact and sustainable developments. Our attorneys bring innovative solutions to advance our clients’ interests.
Godfrey & Kahn is a well-regarded leader in developing innovative strategies for productive redevelopment of abandoned, idle or underused commercial or industrial properties, where the expansion or redevelopment is hindered by real or perceived contamination. We represent a wide variety of entities involved in the redevelopment process, including property owners, developers, municipalities and lenders.
Members of our Practice Group have also written extensively on Wisconsin brownfields law, including authoring A Wisconsin Brownfields Primer, the first book on Wisconsin brownfields law, and Environmental Liability and the Emerging Art Form of Transference, a comprehensive analysis of risk avoidance strategies for brownfield development. We are shaping legislation and regulatory policy and have served on advisory boards for the Wisconsin Department of Natural Resources’ (DNR) Brownfields Advisory Task Force Committee.
Our Environmental Strategies Practice Group has successfully teamed with clients on many brownfields redevelopment projects. On a number of projects we have successfully used fix-fee contracting in conjunction with cost cap and pollution legal liability insurance to effectively transfer environmental risk away from our clients. As a testament to our innovative approach, the Public Policy Forum referred to one redevelopment project as “an intricate study in innovative thinking, partnership, public/private and governmental cooperation, public input, cost control and technology.”
The environmental and administrative requirements that are primarily intended to minimize or eliminate environmental impact of greenfield development are complex. Inability to navigate the regulatory maze to ensure that permitting coordinates with construction and financing schedules can become a significant roadblock to development projects. Godfrey & Kahn has assisted clients in overcoming these substantial legal issues by bringing innovative solutions to advance our clients’ interests.
Our experience includes serving as counsel for clients on both sides of land use issues including assisting clients in permitting new development and representing those clients opposed to projected land use changes. In representing diverse interests in these matters, our attorneys have looked for effective and efficient solutions to land use problems.
American Brass Site – Kenosha, Wisconsin
Godfrey & Kahn represented the City of Kenosha in the acquisition of the former 28-acre American Brass manufacturing site. This transaction involved the complete liability transfer of all responsibilities for demolition and remediation to a third-party contractor and the use of an innovative 30-year cost cap and Pollution Legal Liability insurance policy.
Bayshore Mall – Glendale, Wisconsin
Godfrey & Kahn represented the City of Glendale in all legal environmental services required for the $350 million redevelopment of the Bayshore mall. We developed assessment and remediation strategies as well as sought DNR assurances for remediation liability in connection with the acquisition of contaminated properties necessary for this extensive redevelopment project. The resulting town center mall is a successful mix of retail, commercial and residential redevelopment unique in Wisconsin.
City of Oshkosh
Godfrey & Kahn represents the City of Oshkosh in a complex brownfields matter regarding a dilapidated former furniture manufacturing facility. The lender with a security interest in the property commenced foreclosure proceedings. Concurrently, the City issued raze orders regarding the fire hazard presented by the property. Although the lender elected not to take title to the site, the lender allowed critical damage to the building fire system and held itself as the owner of the property. Edward (Ned) B. Witte asserted a nuisance claim against the lender on the basis of the lender’s creation, continuation and exacerbation of a nuisance. Godfrey & Kahn also represents the City on challenges to stringent phosphorous limits in the DNR issued wastewater permit as well as challenges to the proposed waste and allocations in the Upper Fox River watershed.
Crestwood Triangle – Glendale, Wisconsin
This midsize project involved the redevelopment of several properties contaminated by a former dry cleaning facility. Representing the city, Godfrey & Kahn was able to negotiate a unique agreement with the DNR and the property owner’s lender that allowed the existing outdated strip mall to be redeveloped into an attractive and productive commercial property.
Former Chrysler Engine Plant Property
Godfrey & Kahn represented the City of Kenosha in the successful negotiation, with the Liquidation Trust, lenders, state of Wisconsin and United States Department of Justice to obtain the right for the City to acquire the 104-acre former Chrysler Engine Plant in a complex agreement approved by the Bankruptcy Court in the Chrysler Bankruptcy proceedings.
Former Pabst Brewery – Milwaukee, Wisconsin
Godfrey & Kahn represented a subsidiary of Zilber Ltd, in a 35-acre brownfield project involving the redevelopment of the former Pabst Brewery site in Milwaukee. The environmental legal services provided by Godfrey & Kahn in this redevelopment project included: (1) negotiating a fixed fee, multimillion dollar demolition/asbestos abatement contract; and (2) negotiating a pollution legal liability insurance contract for the site to provide coverage against cleanup and environmental exposure claims for the benefit of the current and future owners as well as tenants at the site.
Fox River PCB – Contaminated Sediment Disposal
Godfrey & Kahn acted as legal counsel for the responsible parties on the negotiations for disposal of PCB-contaminated sludge generated from the $750 million superfund cleanup of the Fox River, Wisconsin. The negotiations with the landfill company resulted in the largest contract for disposal of solid waste in the state’s history.
Harborpark Development – Kenosha, Wisconsin
Godfrey & Kahn assisted the City of Kenosha in redeveloping the former Chrysler Lakefront Assembly Plant into the award-winning Harborpark development. The Public Policy Forum referred to this redevelopment project as “an intricate study in innovative thinking, partnership, public/private and governmental cooperation, public input, cost control and technology.”
Major Brownfields Development
Godfrey & Kahn currently represents a municipality in connection with the cleanup and redevelopment of contaminated property along the Lake Michigan waterfront. We provided legal services including land acquisition strategy, negotiations with owners of contaminated industrial property, procurement of state and federal brownfields grants and loans, and coordination with state and federal regulatory agencies.
Oak Creek Lakefront Development
Godfrey & Kahn is representing the City of Oak Creek on a 250 acre brownfield redevelopment located on the shores of Lake Michigan. This project area has been an industrialized area for the past 100 years featuring, during the time period, the following operations in the project area: Chemical manufacturing, a glue factory, tanning, an aluminum foundry and coal tar reprocessing operations. The City, with the assistance of Godfrey & Kahn, has devised a strategy of voluntary cleanups by each of the owners and other responsible parties, in cooperation with the United States Environmental Protection Agency and the Wisconsin Department of Natural, affording each owner the opportunity for a liability buyout for contamination after the cleanup is complete and ownership by the city of the entire project area. The master plan includes public access along the entire lakefront and commercial and residential development for the balance of the project area. This project represents one of the largest contiguous project areas of revitalized lakefront in an urbanized area on Lake Michigan.
Universal Foundry – Oshkosh, Wisconsin
Godfrey & Kahn assisted the City of Oshkosh in creating a legal strategy to transform a blighted property, which contained a shuttered foundry, into attractive housing that has added substantially to the City’s tax base.
Complex Land Use Strategies
Bypass and Overflow Enforcement Action
Godfrey & Kahn acted as lead counsel representing 28 communities in an enforcement action instigated by the Wisconsin Attorney General in 2005. Wisconsin vs. MMSD, et al., was a land use dispute involving management of water inflow in the sewer distribution systems in each of these communities. Godfrey & Kahn worked alongside the municipal attorneys for the seven lead communities to negotiate a settlement for all 28 that resulted in zero fines and a settlement shield for all involved.
Expansion of the Waste Management Metro Landfill
Godfrey & Kahn acted as special environmental counsel for the City of Franklin, Wisconsin, in a dispute involving the proposed expansion of the Waste Management Metro landfill.
Kenosha Unified School District
Godfrey & Kahn assisted the Kenosha Unified School District in replacing an outdated neighborhood elementary school. One of the few sites available to the school district was contaminated, so we stepped in to solve the challenges in developing the site, which was eventually revitalized with a new elementary school.
Lake Koshkonong Water Levels
Godfrey & Kahn served as co-counsel in a complex dispute with the Wisconsin Department of Natural Resources involving water levels in Lake Koshkonong. We represented two business associations with recreational interest in the dispute. This representation involved:
- Representing the parties in a two week contested case hearing involving more than 15 expert witnesses denying the request for a 7.2 inch water level increase.
- A successful appeal to the Wisconsin Supreme Court that that reversed the decision and remanded it back to the agency for another decision consistent with the Supreme Court’s decision
- Representing the parties in negotiations with DNR that involved a compromise proposal in 2016 the will satisfy the parties.
Minergy Waste Recycling Facility
Godfrey & Kahn negotiated a settlement agreement with the DNR and environmental groups to allow permitting and development of a waste vitrification plant on a former landfill along the banks of Little Lake Butte des Morts, Wisconsin. This facility now processes over 1,000 tons of paper mill waste per day, transforming it into a useful product used throughout the state in construction projects.
Nottawaseppi Huron Band of Potawatomi Indians Casino
Godfrey & Kahn successfully represented the Nottawaseppi Huron Band of Potawatomi Indians in the positioning of its new gaming facility near Battle Creek, Michigan. A well-funded and organized opposition group challenged the facility in part on grounds that the environmental impact statement (EIS) was inadequate. Godfrey & Kahn, working on behalf of the Huron Tribe, ensured that the final EIS withstood the legal challenges.
Opposition to the Crandon Mine
Godfrey & Kahn defended the interests of the Forest County Potawatomi Tribe in opposing the development of the proposed Crandon Mine, a massive underground copper and zinc mine, which would have impacted numerous wetlands and other sensitive environments. This successful opposition culminated in Godfrey & Kahn’s negotiation of an innovative buyout of the mining company’s interest in surface and mineral rights associated with the proposed mine.
Opposition to the Muskego/Emerald Park Landfill
Godfrey & Kahn represented the City of Muskego, Wisconsin, in a contested case hearing opposing one of the largest proposed expansions of a municipal solid waste facility in Wisconsin history. At the conclusion of the 18-day hearing, the matter was resolved by a negotiated agreement that awarded the City of Muskego the largest fee per ton payment for municipal waste negotiated to date in Wisconsin.
Private Development – Village of Saukville, Wisconsin
Our client sought permits necessary to develop a parcel of land that included low-quality wetlands created as the result of a previous excavation on the site. With the assistance of technical consultants, Godfrey & Kahn demonstrated to the Wisconsin Department of Natural Resources and the U.S. Army Corps of Engineers that the area did not meet the legal definition of a wetland and the development was permitted to proceed.
Godfrey & Kahn assisted a commercial client in transforming an underused former heavy industrial use site in West Allis, Wisconsin, to a state-of-the-art printing and publishing facility employing nearly 1,000 people.
Town of Dunn
Godfrey & Kahn represented the Town of Dunn on a contested land use dispute involving the Town’s interest to preserve pristine property covered by conservation easement from impacts associated with an adjacent 1,000+ acre multi-use development in the city of Fitchburg, Wisconsin.
Wetland Fill Permitting
Godfrey & Kahn has advised numerous commercial and government clients regarding wetland fill permitting, often in conjunction with preservation. In one case, we assisted a commercial client in developing a property that permitted fill of low-quality wetlands, wetland preservation and enhancement elsewhere on the same property.